The core idea of clinical legal
education is that teaching students while they are in professional roles is an essential
component of professional education.
Modern clinical education grew out of the progressive reform movement of
the 1960's and 70's and responded to student desire to learn how to use law as
an instrument of social change and to be involved in the legal representation
of poor people. It has evolved into a
distinctive academic field that includes sophisticated models of pedagogy, and experience-based scholarship about teaching,
lawyering, law and legal institutions.
There are three different branches
of clinical education in the United States, in-house live-client clinics,
externship programs and simulation courses.
In-house live-client clinics are built around an actual law
office, usually located in the law school, that exists for the purpose of
providing students with a faculty-supervised setting within which to practice
law and learn from the experience.
Students learning in Externship programs are placed in
professional settings, including law offices within NGO’s and government
agencies, external to the law school.
Law schools utilize the student’s experience in those offices as the
basis for teaching and learning. Simulation
is a teaching method in which students are put into simulated lawyer roles
to perform some aspect of the lawyering process in a controlled setting. Each of these uses the students’ experiences
as the subject matter for analyis, both within and outside of the classroom.
Most references to clinical legal
education in the U.S. are to the in-house model. The advantage of this model is that the primary purpose of the
law office in which students work is education. In these clinics students’ first professional experiences are
undertaken under the supervision of faculty members. The pedagogy is designed to engender appropriate professional
values while also teaching students the theory and practice of lawyering.
Students in clinics are given
complete responsibility for handling an actual legal matter for a real
client. This is possible because every
state has a “student practice rule” permitting students who are supervised by a
faculty member to practice law.
Students’ work includes the trial of cases in court, negotiations with
opposing counsel, client interviewing and counseling, writing opinion letters,
and all of the other tasks associated with legal representation. While most clinics represent clients in
litigation or other contested proceedings, there are now many clinics in which
students represent individuals and groups in transactional and other business matters. Schools have chosen a variety of ways to
organize the legal work of their clinics and so there are clinics that
specialize in such areas as criminal law, family law, domestic violence,
international human rights, community economic development, tax, and others
that are set up as general practice clinics handling a variety of civil
cases. Another way that clinics are
organized is to target a particular clientele, such as juveniles, women, the
elderly, prisoners, or AIDS patients.
Clinical teachers use a number of
learning modes, both to be certain that students competently handle the matters
entrusted to them and to ensure that students learn from their
experiences. The most intensive mode is
called supervision, meetings between teacher and student teams (many clinics
require students to work in collaborative teams of two) to discuss preparation
or to analyze critically work that has been done. These meetings are frequent and include, among other things, review
of students’ written work, strategic choices, and reflections on what has been
learned. The best supervision both
deals with the particular problems in the pending case as well as uses that
case or student experience as a metaphor for larger recurring issues that the
students will face in their careers.
Helping students extract theory from experience, apply theory to solve
real world problems and to revise theory in light of experience is the
supervisory ideal.
Another learning mode in clinical
programs is called “case rounds.” Case
rounds are conducted in a seminar format and focus on the students’ experience
in their cases. Students are called on
either to present a case in preparation for group input on the decision-making
necessary to the next actions in the case or to report on an event that has
occurred in a case. The group process
is used sometimes to look forward, by
helping a team make a strategic decision, and sometimes to look back, to
analyze the relationship between a result and the actions the legal team took
to produce the result. The empirical
data collected by each student is shared with the group so the students can
begin to develop a more general and theoretically sound approach to
lawyering. Among the topics that are
discussed are professional values, legal ethics, strategy, tactics, and the
process of reflection.
The third learning mode is a seminar
utilizing readings, simulations and classroom discussion to teach the lawyering
process. The widespread use of
simulations in legal education began from the pioneering use of it in the
seminar component of clinical programs.
The syllabus for the seminar typically includes client interviewing,
client counseling, case theory, strategic planning, fact investigation,
negotiation, persuasion, and trial skills such as direct and cross examination
and closing arguments. In the clinic in
which I teach, for example, the seminar is built around a simulated case and
for each of the topics we teach a theory class, then give students the
opportunity to apply the theory in a simulated exercise that is videotaped and
critiqued. Some of the classes are
built around edited videotapes of the students conducting the simulated
exercise.
The most important goals of our
in-house clinic are to teach the following:
§ Client-centered lawyering
§ Theory-driven preparation and advocacy
§ Professionally responsible legal work
§ Fact investigation and development
§ Persuasive advocacy
§ Strategic planning and problem solving
§ Critical analysis of the justice system
§ Reflective practice
Client-centered lawyering, perhaps the ideological core of clinical
education is the idea that lawyers represent clients and must do it in a way
that ensures the autonomy of the client as the primary decision-maker over the
life of a case. It assumes that all
important decisions involved in solving a legal problem involve value-choices
and that a primary job of a lawyer is to help a client make those decisions in
a way that is consistent with the client’s values. Teaching legal interviewing, problem solving and legal counseling
are, therefore, fundamental in nearly all clinical programs. In addition, as is the case with all of the
parts of the lawyering process, one of the scholarly projects of clinical
teachers has been to develop theories or models of how each of these lawyering
tasks might best be carried out and theories of what pedagogy would best teach
them.
Theory-driven preparation and
advocacy refers to the idea that all of the lawyer’s strategic decisions in
a case need to be organized around a theory of how the client’s case may be
won. This “case theory” is way of
telling the client’s story that emphasizes favorable facts and explains
unfavorable facts in the context of the legal elements necessary to prove the
client’s cause. Decisions, for
example, about what facts to
investigate, what evidence to present, and what arguments to make are
determined by their relationship to this case theory. Students in clinics are taught how to develop these case theories
early in their preparation of a case, how to revise them as necessary as
situations change, and how to organize their work on the case in ways that are
consistent with the theories.
Teaching students to engage in professionally responsible legal work
is one of the most basic duties of a clinical teacher and the fact that this is
done in a clinic is one of the fundamental justifications for locating the
clinic within the academy. Ethical and
moral dilemmas occur daily while working in the real world and clinic students
are, usually for the first time in their lives, responsible for resolving
them. Students engaged in practice must
decide what to do when a client proposes to tell a lie or wants to advance a
position the student finds morally repugnant, how to deal with a conflict of
interest, whether to file a complaint against an incompetent or unethical
co-counsel or opposing counsel, etc. In
addition to questions involving compliance with the formal rules of
professional conduct, clinical teachers engage students in an exploration of
their role in creating a just society.
In
most of the rest of the curriculum in American law schools facts are
given. In the study of appellate court
decisions, fact are distilled into a few short paragraphs and students do not
develop of understanding of where these facts come from. In the clinic students must learn the facts
through a client interview, often across language and cultural barriers, through research and investigation, and
through formal and informal discovery procedures. In learning fact
investigation and development, students are taught what facts to look for,
how to distinguish relevant from irrelevant facts, methods for searching for
facts, the importance of legally sufficient evidence to support factual
propositions, and how to organize the evidence to tell the story that is
consistent with the case theory.
Persuasive advocacy is
important to lawyers in both litigation and transactional settings. Persuasiveness depends upon both the quality
of the case theory and the skills necessary to carry it out. Clinics teach students theories of advocacy,
including, for example, the relationship of learning theory to conducting a
direct examination, and the relationship of rhetorical reasoning to conducting
a cross examination.
Strategic planning involves
recognizing the maximum number of choice moments in the life of a legal matter
and making decisions about taking action or withholding action that maximize
the likelihood that the goals will be achieved. Learning how to make decisions that predict how people and
institutions will behave in response to particular actions, including analyzing
both legal and non-legal factors, is basic to legal problem-solving. The real-world setting of the clinic forces
students to engage in the complexity of analysis that is inherent when the
multiple actors who affect outcomes are identified. Clinical teachers work closely with students both to teach them a
sound process for decision-making and also to ensure that the decisions they
make in the cases they are handling are analytically sound.
Clinics are also uniquely positioned
to provide students a vantage point to engage students in critical analysis
of the justice system. Because they
typically represent the poor and the disenfranchised, students see the legal
system through the eyes of clients who are members of racial or sexual minority
groups, indigents, immigrants, women, or convicts. They witness, for example,
the ways in which those statuses often disadvantage their clients,
sometimes as a result of legal doctrine or other times stemming from the
prejudices of judges or other actors in the system. Clinical teachers work with them to help them understand the
sources of injustice and to explore their ideas for reform.
Ultimately, clinical pedagogy is
intended to teach students be reflective practioners, life-long learners
who know how to learn from experience.
Throughout a student’s time in a clinic, they are asked to evaluate
themselves, analyze their experiences, and articulate what they learned about
themselves, about their abilities, about the validity of the assumptions they
made when they made their strategic predictions, about the lawyering process
and about the justice system. In this
way, we work to develop in each of them an ability both to gather useful
empirical information and to develop that information into generalizable
conclusions.
As stated above, simulation is often
used in the seminar portion of clinical programs. In addition, a number of the skills that are taught in clinics
are also taught in simulation programs.
For example, many law schools have simulation courses in interviewing
and counseling, negotiation, legal writing, alternative dispute resolution, and
trial and appellate practice.
Simulation is also used to teach substantive law courses, either in
their entirety or, more commonly, to teach a portion of the syllabus.
Externship programs place students
in various kinds of legal jobs in the non-profit and government sectors where
they perform legal work under the supervision of a lawyer in those
agencies. Many schools endeavor to
create a three-way relationship between the professor, the student and the
supervisor so that the faculty member can monitor the student’s work and the
supervisor’s evaluation of it. Other
schools rely on the students’ reflections upon the work in the externship as
fodder for learning. In most externship programs, students write reflective
journals, have tutorial meetings with faculty members and participate in
seminar discussions. Learning goals of
externships include providing students with a milieu within which to learn a
substantive area in depth while developing a
critical perspective on the organization of legal work. Externship teachers often explore the
ethical dimensions of the student’s experiences and observations explore the
justice issues that are inherent in most of the settings in which students
practice.
Although there are more than 1000
law teachers in the United States who self-identify as clinicians, there are
only a few schools that can serve all of its students with a clinical
experience. Even though nearly every
American law school has some form of clinical program, and the number of
students served grows each year, the expensive faculty-student ratio that this
form of teaching requires (1:8 is the informal standard for in-house programs)
inhibits school’s ability to make it universally available.