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Research Reports on Legal Education
Number Two :-
Legal Skills and Clinical Legal
Education
by
Richard Grimes
Sheffield Hallam University
Copyright © 1995 Richard Grimes.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.
Web JCLI | [1995] 3 Web JCLI | Download this file
- Contents
- Introduction
- The Survey
- The Findings
- Introduction
- The Incorporation of Skills
- Delivery and Assessment
- Clinical Legal Education
- Delivery and Assessment
- Conclusions
Introduction
Over the past five years there has been an increasing demand for skills and experiential learning to appear within the curriculum of education in general and higher education in particular (Macfarlane 1992). For those involved in the teaching of law this has been no exception. The Lord Chancellor's Advisory Committee on Legal Education and Conduct in their Consultation Paper, Review of Legal Education - the initial stage makes explicit reference to both the relevance of intellectual and personal skills and the importance of seeing law in its operational context (ACLEC 1994 p 11). In the United States the influential American Bar Association Task Force on Law Schools and the Profession (the McCrate Commission) produced a report which identifies fundamental lawyering skills and values (ABA 1992 pp 138-141).
A lively, if not yet extensive debate on the relevance and content of legal skills programmes, on both undergraduate and vocational courses has been and is taking place. Examples of the positions taken in this debate can be found in Bradney's article "Ivory towers or satanic mills: choices for university law schools" (Bradney 1992) and Macfarlane's article "Look before you leap - knowledge and learning in legal skills education" (Macfarlane 1992a). In early 1994, however, there seemed little information on the extent to which skills and experiential learning featured as part of the curriculum on law degrees, other than implicitly or fleetingly in broader studies (see Woolson 1993 and Harris et al 1993).
Interested and enthused by their own experiences delivering clinical and skills-based courses, staff at Sheffield Hallam University have recently conducted a survey of all law schools offering undergraduate degrees in law. The research funded by the School of Financial Studies and Law, was conducted by Richard Grimes, Senior Lecturer, Sheffield Hallam University; Joel Klaff, Research Assistant, Sheffield Hallam University; and Colleen Smith, Senior Lecturer, Sheffield Hallam University.
This report summarises the initial findings of the survey as at September 1994. As will be seen in the conclusion to this report, the results suggest the need for further and continuing research focusing on the quality and significance of such programmes. This survey was designed to describe what the institutions say they offer in the field. It is not an examination of the quality of such provision.
Before turning to the summary of the findings, some notes of explanation must be made. Skills were not exhaustively defined (the researchers wanted the providers to describe what they saw as the skills) although specific categories were listed. The skills listed were drafting, research, interviewing, negotiation, advocacy and communication. The link with clinical education was made for two reasons. First, the clinic (whether simulated or live-client) requires students to address legal and transferable skills (for example, drafting or advocacy and communication or study skills). Secondly, the researchers suspected that clinical methods were widely used (and increasingly so) and wanted to quantify the extent to which this was happening, in particular with reference to a live-client base. The level of interest in live - client work was indicated by the national and international attendance at the Derbyshire Conference on Legal Education, co-organised by Sheffield Hallam University and the University of Northumbria at Newcastle, held in April 1994.
The Survey
Each institution surveyed was asked to describe the content of their own degree course in relation to:
- the express or implicit incorporation of legal skills into the curriculum, including what skills and the form of incorporation (express incorporation was defined as where the skills formed a discrete part of a unit either dedicated to skills or integrated with another programme; implicit incorporation was defined as part of an overall educational process, but not an identified or dedicated element of any unit)
- learning/teaching methodologies
- the use of live-client clinical work (the exposure of students to learning by doing with real clients).
Results were compiled in the period May to September 1994 and the analysis was completed by December 1994. A detailed account of the research findings is due to appear shortly in the International Journal of Legal Education.
The Findings
79 institutions were approached, of which 43% were new universities and 57% old universities. 80% of institutions surveyed responded (76% new, 82% old). The response rate was considered to be sufficient to give a sample which could be taken as reliable and representative.
All findings were analysed in terms of responses from old and new universities. As will be seen, this was significant.
The incorporation of skills
83% of all institutions offered skills within a dedicated unit or a combined skills/substantive unit (that is, expressly incorporated). Of these, 89% were new universities and 78% old universities. 17% of institutions did not expressly incorporate skills (11% new, 22% old).
A range of skills were then examined including drafting, research, interviewing, negotiation, advocacy and communication. Other skills included by respondents were legal analysis and mooting.
Unsurprisingly, research featured widely in the responses. 92% of those institutions expressly incorporating skills specified research. This was 77% of all institutions surveyed. There was little difference in this respect between old and new universities. It is, perhaps, more of a surprise that not all universities said they incorporated research as a skill, given how central research is to legal study and the practice of law.
Of the other specified skills, drafting was taught in 45% of institutions expressly incorporating skills, interviewing in 62%, negotiation in 53%, advocacy in 60%, communication in 70%, legal analysis in 19% and mooting in 8%.
With the exception of research and mooting, the new universities generally appear to place greater emphasis on the express incorporation of skills. They were at least twice as likely to expressly include the skill than the old universities.
This can be contrasted with the findings on implicit incorporation. Here the old universities indicate they are as or, in some cases, more active than the new universities. 33% of all universities implicitly incorporated skills (22% new, 41% old). If the findings are combined with those on express incorporation, a proportion of institutions both expresssly and implicitly incorporate skills. The research analysis did not examine this overlap, although the raw data is available.
A similar range of skills were reported, with research (76% of those implicitly incorporating skills), advocacy (62%), communication (71%), and legal analysis (76%), featuring prominently.
It would appear that a significant proportion of all universities say they implicitly incorporate many of the skill areas (with the exception of drafting, interviewing and negotiation).
Delivery and Assessment
58% of all institutions surveyed offered a dedicated legal skills unit (85% new, 37% old). Only 6% of institutions did not expressly or implicitly incorporate skills within either a dedicated or combined unit, or through placements or extra curricula activity (0% new, 16% old).
Of those offering a dedicated skills unit, 70% made this compulsory in year 1 (65% new, 79% old), 38% in year 2 (43% new, 29% old), and 8% in year 3 (9% new, 7% old).
A dedicated skills unit was not available as a first year option but was offered in 49% of cases in year 2 (61% new, 29% old) and in 30% of cases in year 3 (30% new, 29% old).
Compulsory skills programmes were, therefore, widely used in the first year of undergraduate programmes and as options in years 2 and 3.
Delivery was by lecture (65%), seminar (89%) and simulation/role play (83%). The last was more widely used in new universities.
Assessment was by seen exam (19%), unseen exam (24%), course work (81%), oral presentation (81%), and continual assessment (38%). Old universities favoured unseen examinations; new universities seen exams, oral presentation and course work.
Grading (as opposed to a simple pass/fail mark) was common on dedicated units (78%).
The same questions were asked in respect of combined skills/other substantive courses with similar results. Here a heavier preference for examinations featured at the cost of alternative assessment methods.
Under the heading of extra curricula activity, mooting and debates were identified as being widely offered but not seen as expressly incorporated in programmes. Of those institutions offering such activity, 52% listed debates and 88% mooting. These were said to facilitate the specific skills of research, advocacy and communication.
Clinical Legal Education
The research also addressed clinical legal education, that is a model where students learn through experience or 'doing' law. Simulations (that is cases or parts of cases without real clients and based either on fictitious or real facts, but acted out as if they were real) were widely used both in dedicated course units (83% - 87% new, 79% old) and combined skills/substantive units (61% - 69% new, 56% old).
The role and weight of live-client clinical work within the curriculum has been noted and discussed elsewhere (see Tarr 1993) From the researchers' own experience of running a live-client clinic, the learning experience for the students represents a qualitative leap from simulated models. It is 'deep learning' at its best (see Gibbs 1992) The survey, therefore, looked specifically at the use of live-client clinics in UK law schools.
13% (8) of all institutions surveyed offer a live-client clinic (that is where real clients with actual problems are advised and/or represented): 23% of these are in new universities and 5% in old. Two institutions run a full representation service as solicitors' practices. One is compulsory and is assessed on a pass/fail basis, the other a second/third year option is graded. Both are in new universities. Six institutions offer advice only or partial (tribunal/arbitration) representation.
The services offered by the live-client clinics are predominantly welfare based (housing, social security, employment, immigration and consumer rights).
Two live-client clinics are offered as options in year 1, three in year 2 and four in years 3 and 4. One is compulsory (years 2 and 3).
Assessment is mainly by course work/presentation. Four institutions grade performances, three operate on a pass/fail basis, and one does not assess.
Conclusions
The survey indicates that skills teaching and clinical education are recognised as an established feature within the curriculum. The existence of dedicated and combined units and the attention paid to assessment methods coupled with the range of skills covered, suggest that the teaching of skills is now taken seriously by law schools in the UK.
It is, perhaps, predictable that new universities should feature prominently in overt skills teaching. It is suggested that the old universities whilst perhaps slow to start, are rapidly catching up in this respect.
The extent to which these skills are effectively taught and how this fits into the curriculum was beyond the scope of this research, but clearly raises an issue for further examination.
When taken in the context of not only current reviews of legal education (notably ACLEC) but also reviews in other common law jurisdictions (including Australia, Canada and the USA), it is also suggested that skills and clinical education are here to stay.
The real debate should now be what these skills consist of and how they best aid the process of learning law.
Contact :-
For those interested in developing programmes in clinical legal education, an umbrella organisation has now been formed known as the Clinical Legal Education Organisation (CLEO), which can be contacted through:
Hugh BrayneContents
Department of Law
University of Northumbria
Sutherland Building
Newcastle upon Tyne
NE1 8ST.
ABA (1992) Legal education and professional development - an educational continuum: narrowing the gap American Bar Association.
ACLEC (1994) Review of Legal Education - the initial stage , ACLEC.
Bradney, A (1992) "Ivory towers or satanic mills: choices for university law schools" 17 Studies in Higher Education 5.
Gibbs G, (1992) Improving the quality of student learning, Technical and Educational Services Ltd.
Harris, P et al, (1993) 'A survey of law teaching 1993', Sweet and Maxwell.
Macfarlane, J (1992) Teaching and learning in an expanding higher education system' (known as the Macfarlane Report), CSUP.
Macfarlane, J (1992a) "Look before you leap - knowledge and learning in legal skills education" 19 Journal of Law and Society.
Tarr, N (1993) "Current issues in clinical legal education" 37 Howard Law Journal 31.
Woolson, J (1993) "A third survey of university legal education in the United Kingdom" 13 Legal Studies 143