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Schrup, S --- "The Clinical Divide: Overcoming Barriers to Collaboration between Clinics and Legal Writing Programs" [2007] LegEdDig 13; (2007) 15(1) Legal Education Digest 34

The Clinical Divide: Overcoming Barriers to Collaboration between Clinics and Legal Writing Programs

S Schrup

[2007] LegEdDig 13; (2007) 15(1) Legal Education Digest 34

NYLS Clin Inst Research Paper No. 06/07, 2006, pp 1–41

Increasing focus has been directed at the incidence and importance of collaboration across law school programs and, in particular, between legal research and writing (LRW) programs and clinical programs. Part of the increased scrutiny stems from a mutual dissatisfaction with student performance and experience from the end of the first year and into the final two. And although scholars are just beginning to assess the actual collaboration that presently is occurring within law schools nationwide, as discussed below value accrues to students, clinics, legal writing programs, and law schools generally when increased coordination and seamless integration of the learning process occur.

Turning first to the benefits for law students, collaboration between clinics and LRW departments furthers the goals of the MacCrate Report, which since its publication in 1992 by a special ABA Task Force on Law Schools and the Profession, has set the benchmark for legal education.

And, aside from satisfying the McCrate Report’s specific goals, collaboration provides other learning benefits to students. When clinicians and LRW faculty members share their methodologies and adopt in part each other’s approaches, they provide context, continuity and reinforcement of the principles taught in each course.

Benefits from collaboration between LRW departments and clinics also impact faculty and law schools as a whole. Clinicians will benefit from better-prepared students and both LRW and clinical faculty members could improve their teaching by incorporating the best approaches of each other’s methodologies. Finally, law schools as a whole benefit by providing the unique, cutting-edge programs that emerge from new collaborative arrangements and by creating better-prepared students who fulfil the mandates of the MacCrate Report.

The most fundamental barrier to collaboration and integrated learning between LRW programs and clinical programs stems from differences in the development of the two disciplines and the resultant differences in teaching approaches.

One central way in which the goal of seamless collaboration between LRW and clinical programs has been undermined is through the barriers set forth by the structural development of each discipline and the resulting focus of each in teaching and scholarship.

Examining the historical development of the programs, their goals, and their teaching methodologies and scholarship shows that there are fundamental pedagogical differences between the disciplines that impact the ability of students to seamlessly integrate learning from each and that inhibit the communication and collaboration between departments that could ease such a transition.

Clinics as we know them developed out of the legal realist movement in the 1930s, which ‘taught that legal education should expose students to the dynamic relationship between theory and practice.’ A second wave of clinical growth occurred in the 1960s and 1970s due to widespread student demand and increased financial support from private foundations, which stemmed from heightened social unrest, activism and the recognition of social justice concerns in legal education. In the late 1960s, William Pincus, a Ford Foundation officer, persuaded the Ford Foundation to establish the Council on Legal Education for Professional responsibility, a separate foundation under Pincus’s leadership that would provide grants to law schools to establish legal clinics assisting the economically disadvantaged.

The ethical duty of representation results in teaching a ‘client-centred’ approach to lawyering. The educational goals are best served by creating an environment that permits learning via experience and reflection, which is best suited to adult learning styles and which means providing feedback without undue intervention and directiveness. Clinicians have found these dual methodologies compatible and effective in addressing the competing duties by providing for the client’s interests while simultaneously incorporating adult learning styles. Turning first to the concept of client-centered lawyering, one unifying feature of clinical practice is that it seeks to teach students to ‘empower clients to make important decisions at each step of the legal process.’

Client-centred lawyering thus proposes ‘a relationship that is more egalitarian than is found within the traditional power structure of a paternalistic attorney-client relationship.’ These tenets are tied to the ideal of ‘rebellious’ lawyering, which seeks to empower subordinated clients. Rebellious lawyering is defined by consciously disavowing lawyer-client relationships that disempower the client, investigating novel, even non-legal, approaches to problem solving, and actively collaborating with the client and community professionals to effect social change. The combination of client-centred, rebellious lawyering in clinical legal education along with the resurgence of social-justice concerns in clinics, both of which place the client and lawyer together in the decision-making process, has become the pedagogy of choice for many clinicians because it effectively satisfies both their educational missions as well as their ethical duty of representation for their clients.

The concept of experiential learning is the other anchor of clinical legal education. In the clinical legal setting experiential learning often readjusts the students’ notions of justice. By observing the impact of the legal system on their clients and by working within that system students learn not only the meaning of justice within that system but also develop their own concept of justice from that experience.

This combination of progressive lawyering, a commitment to reflective, experiential learning, and overriding public-interest and social-justice concerns, all of which emerged through the development of the clinical discipline, has created a learning environment that differs from that in other law school courses, both doctrinal and in LRW.

The value of teaching students about legal research and writing was first recognised in the early 1900s, and ‘legal bibliography’ courses, which described the sources of legal authority and the mechanics of legal research, were the primary vehicle for basic legal-writing instruction. Formalised LRW programs in various forms sprouted up during the 1940s and 1950s. However, for the most part, legal writing courses from the 1950s to the 1970s remained ‘marginal and peripheral’. In the last twenty-five years, however, the LRW field has expanded so that today every accredited law school offers some form of LRW instruction.

Building on New Rhetoric theory, cognitive psychology and learning theory, LRW faculty have created scholarship and an approach to teaching that is based on, among other things, the following three tenets: (1) composition theory that is process-based and reader-based; (2) notions of discourse communities and the transfer problems inherent in this construct; and (3) expert-novice gaps in learning.

LRW professors are charged with the daunting task of corralling the writing styles and abilities of, on average, forty-four first-year students into an acceptable baseline of legal writing competency. Thus, unlike clinical courses, which often average no more than ten students, LRW faculty members must, to some extent, employ baseline structures and paradigms in their teaching to ensure that their teaching encompasses not only the varied writing styles and backgrounds, but also the differences in skill among their students. Within this context, LRW faculty members have incorporated fundamentals from New Rhetoric theory, cognitive psychology and learning theory in an attempt to reach all of their students’ varied learning styles and skill levels.

First, New Rhetoric believes that writing is a process for constructing thought. LRW professors using the ‘process’ approach encourage students to write in order to satisfy their reader’s needs and preferences rather than simply recording the workings of the students’ verbal thought; the process thus relies on ‘predicting how judges and other attorneys expect to receive information.’ What this requires, however, is imposing a formula or structure in legal writing that conforms to the reader’s expectations. Some scholars have argued that this approach frequently results in ‘regnant’ lawyering, which is the opposite of the ‘rebellious’ lawyering described above. Regnant lawyering focuses on ‘lawyering ... in a fashion that relies on conventional remedies and institutions, and upon lawyer expertise and dominance even while seeking the client’s “best interests.”’ This regnant or traditional approach to lawyering is reinforced by LRW faculty members who attempt to, within the rubric of New Rhetoric and other learning theories, teach students to ‘think like a lawyer’ or to ‘write for a lawyer’ audience.

Regnancy is further reinforced by the role of discourse communities that some New Rhetoriticians employ to explain their students’ inability to assimilate legal writing. Although New Rhetoricians generally agreed on the process approach to writing, a schism developed within the group over whether the process of constructing meaning occurred within the individual or within a social-discourse community. Discourse-community theorists posited that only after a student has mastered the conventions, practices and rules of the discourse, which included patterns of argument and common strategies for interpreting facts and law, could the student be deemed a good legal writer. Regardless, the New Rhetoricians, whether focused on the individual or the wider discourse community, created tangible processes and institutional models for the legal research and writing craft. And, under either approach, the student is taught to focus on what is ‘right’ within the prescribed internal processes or ‘acceptable’ within the discourse community. Thus, the writer’s focus remains almost entirely lawyer-centred as opposed to client-centred.

Finally, regnancy is further reinforced in the context of ‘expert-novice’ gaps and the science underlying it, which has played an important role in LRW teaching and scholarship. Cognitive scientists posit that ‘as a learner moves from novice to expert, gaining both knowledge and experience, the learner develops patterns or frameworks called schemas to integrate and structure that knowledge and experience.’ Moreover, schemas by their nature are non-specific; encouraging students to substitute general routines and processes for a client’s specific needs reinforces the traditional, top-down relationship between lawyer and client.

In addition to the substantial barriers presented by the differences between the disciplines and each one’s approaches to teaching, other practical barriers to collaboration in instruction exist: (1) competing demands on the faculty; and (2) physical separation, differing status, lack of communication and the reality of how little collaboration presently occurs; and (3) the lack of knowledge about the other’s teaching and scholarship.

Effective collaboration between LRW and clinical faculty calls for an understanding of the ways each discipline can supplement and enrich the other. Only with this understanding will LRW and clinical faculty be able to undertake the next and the most critical step: integrating aspects of each other’s teaching methodologies in their courses.

Remedying the practical barriers also will have spill-over benefits to students and faculty within these disciplines. They should work together to identify areas where bridges between the first-year LRW course and upper-level clinical courses can be built. LRW professors should solicit ripe legal topics for their memo and brief problems from clinicians. Clinicians should work with LRW professors to learn the fundamental paradigms and language used to teach those first-year skills so they can continue them in their own courses.

As I transitioned from a LRW professor to a clinical professor of advanced legal writing, I encountered many of the various barriers discussed above.

In my attempts to get final approval for the course and in order to create a design template, I accepted a pro bono appointment with the Seventh Circuit to represent a criminal defendant on appeal. I recruited several talented former students who were willing to work on the case for no course credit and for little or no compensation; they were interested in the experience and in participating in the ‘real’ practice of law.

In the wake of this experience, as well as my experience as a LRW teacher, I set out to design the new federal appellate clinic, which I envisioned as a distinct hybrid course. I remained attached to the idea that we could craft a perfect, professional brief under a traditional law-firm model while still giving the students a valuable clinical experience. Although the topics I chose for each week’s class reflected a concerted effort to create a hybrid clinical-LRW course, I initially intended to present many of those topics in the traditional ‘lecture-and-exercise’ mode that I had used in my first-year course. To begin the process of crossing over from a LRW professor to a clinical professor, I attended the 2006 AALS Conference on clinical education.

I learned from these clinicians that I needed to make some changes in my teaching in order for my new clinic to work. Specifically, I needed to incorporate more of a client-centred and experiential-teaching approach into the course. I needed to remain student-focused and teaching-focused, but not to the exclusion of my clients’ interests, which meant that I needed to be less paternalistic with respect to decision-making in the case.

I also needed to be less paternalistic with respect to the students. Although the students needed guidance in formulating and structuring arguments, my role was to assist each one in finding his or her own writing style and voice. My editing had to become more facilitative and less directive or dictatorial because I had to recognise that outside of the first-year LRW classroom, there simply is not one ‘correct’ way to craft an argument.

I did, however, keep several important concepts from LRW.

As a result, I revamped the syllabus with an eye towards creating a collaborative, student-directed, and client-centred classroom component. Topically, I kept many of the original topics, but emphasised lectures and ‘direct’ teaching less and their cases and own writing more. The revised course was founded on seven guiding principles. First, I felt it was extremely important for the students to progress on the same schedule and to be addressing the same issues in the early part of the semester so that class time could be collaborative, student-driven, and case-based. Second, I wanted class time primarily to be student-driven. Third, the students needed to make a connection with their clients and to learn their client’s story. Fourth, the course retained a structured emphasis on writing through discrete, case-based assignments and targeted editing and revising throughout the semester. Fifth, I wanted to ensure that the students retained a sense of pride and ownership over their case and learned professionalism. Sixth and relatedly, my role as supervisor would focus on facilitating discussion and brainstorming as well as reviewing the multiple drafts the students submitted. Finally, I created what I called ‘crunch weeks’ for the week leading up to a filing deadline where all of the students in the clinic would be expected to pitch in to edit, cite-check, proofread and finalise a brief. In the second semester, this collaboration and assistance would continue with students preparing bench memoranda and oral argument moot courts for each other. At the end of the process, I felt that I had struck a nice balance between the clinical methodology and an LRW approach to advanced legal writing. I had moved away, at least in part, from regnant, top-down teaching but also tried to reinforce the writing tenets that govern most LRW pedagogy.

Although barriers do exist that may impede collaboration across law school departments, those barriers can be addressed and overcome with a conscientious commitment to do so. The first step is recognising the barriers inherent in each department’s methodologies. The next step is for clinics and LRW departments to adopt the other’s best approaches in order to provide continuity to students’ writing and ultimately improve their writing.

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