McNamara, J; Field, R --- "Designing for Reflective Practice in Legal Education" [2008] LegEdDig 12; (2008) 16(1) Legal Education Digest 42

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Designing for reflective practice in legal education

J McNamara & R Field

2 J Learning Des 1, 2007, pp 1–66

This article considers the potential for achieving effective learning design in the discipline of law through the use of reflection and reflective activity. First, we explain the context of our consideration of the use of reflection in teaching delivery and assessment by focusing on an example first year unit taught in the QUT Law Faculty. Second, we consider how critical elements of the learning design in the sample unit that relate to reflective activity satisfy Ramsden’s six principles of effective teaching. Third, we critically evaluate the use of reflection and consider elements of the learning design, particularly in relation to assessment, that could be enhanced to achieve even more effective learning outcomes for students.

In ensuring that effective learning opportunities are made possible for students, the teacher has a responsibility to reflect on the success of teaching strategies in light of student learning outcomes. If a large percentage of students are unable to demonstrate through assessment tasks that they have learnt what is expected, then a significant element of responsibility lies not with the students but with the teaching and learning design.

In accordance with this approach, the conceptual framework used to inform our analysis was a reflective one. Collectively, the authors engaged directly with 160 of the 524 students enrolled in the sample unit.

This engagement took place across five tutorial groups held weekly for 90 minutes over the full 13 weeks of the semester. The authors were also engaged with the results of the students’ learning in the unit through the marking of 320 research record assessment items. During the semester the authors kept a reflective journal of their experiences teaching in the subject. The authors evaluated the level of reflection engaged in by the students through the students’ tutorial activity and as evidenced by their written assessment.

The learning design context for our analysis is a core first year unit in the Bachelor of Laws at QUT Law School — LWB143: Legal Writing and Research. The purpose of the unit is to teach introductory legal research, analysis and writing skills. It is an aim of the unit to ensure that by the end of the students’ first year, they are able to use these skills to perform tasks required in legal study and practice, and have the ability to reflect and to continue to develop research writing and analysis skills in the future.

The Legal Writing and Research unit involves (at least in the design format which we delivered in 2006) what might be considered a relatively traditional lecture/tutorial delivery model. The lectures focus on unit purposes and requirements, research methodologies, problem-solving skills and writing skills. Tutorials allow time for practical individualised instruction in small groups (20 students), interactive, discursive sessions. Despite the traditional delivery model, the unit has a number of innovative elements to its design for teaching legal research skills. For example, all tutorials occur in a computer lab so research skills can be explicitly modeled to students and they experience hands- on active learning opportunities. More particularly, the unit’s design is innovative because reflection is a significant element of approach to both delivery and assessment.

In LWB143 reflection is integrated in tutorial design through the focus on active learning and engagement in formative practical exercises and reflective discussions. Tutorials are also designed to provide students with time to prepare, discuss and reflect on their developing legal research skills in connection with two key items of assessment for the unit: research records, which together are worth 45 per cent of the overall unit assessment (the assessment design also includes a client letter (15 per cent)); and memorandum of advice (40 per cent).

The research records are a record of learning and development of research processes and techniques and of the outcomes of research undertaken. Importantly, the research records contain weekly reflective exercises, in addition to practical research tasks.

Students bring their research record to tutorials and are encouraged to create an electronic version of it to work on in class. It is made explicit to students that the research record is designed to assess students’ attainment of key unit objectives. These objectives relate to skills in applying appropriate research methodologies to legal research, identifying legal issues in factual circumstances, and analysing legal issues to solve legal problems.

In LWB143, it can be said that students engage in reflection before, in and on action. For example, reflection-before-action takes place in the first tutorial through a learning styles questionnaire and a research skills inventory. Students are also asked to reflect on what it is they expect to learn in the unit. Reflection-in-action is encouraged in that while completing the research activities, students constantly appraise the success of their research strategies and revisit their research as they develop new knowledge and skills (modelling the recursive nature of research). Finally, students are encouraged to reflect-on-action in that when they have completed the given research tasks they are required to reflect on the research difficulties they encountered and reflect also on the nature of research in a generic sense. The reflection required in the unit is not always critical and self-reflective, as it does not necessarily require students to question their assumptions or practices. Rather, much of the reflection concerns the nuts and bolts of the research process; it is a tool to assist students in developing their research and writing skills, and to appreciate the recursive nature of research.

The evaluation of the effectiveness of including reflection in the learning design of LWB143 takes into account some important contextual considerations. For example, many students enrolling in the unit have little or no experience in academic research, particularly legal research, and as a result their academic writing skills are often yet to be developed, and they also have little or no experience of reflective writing or thinking. Students in the unit are therefore at a point of commencing their journey towards autonomy and independence of learning.

A final important contextual factor to the analysis here is that the development in students of an ability to reflect is an important teaching and learning objective in legal education. Indeed, it can be said that an overall goal of a good legal education is to develop a highly differentiated cognitive framework for students that gives them control over knowledge. Inculcating reflective practice in the students’ cognitive frameworks is an essential element of achieving that goal, and of enhancing the critical and analytical abilities of students of law. The fact that reflective practice has been identified as a skill which is an expected attribute of QUT Law graduates (QUT) evidences the centrality of reflection to legal education, but also demonstrates the significance of reflection in terms of ensuring that our students become lifelong learners. That is, we aim to ensure, through encouraging reflective practice, that our law graduates will be aware of the continuing need to acquire and develop legal knowledge and skills throughout the course of their professional lives.

Our initial impressions of the unit were extremely positive in relation to the unit design, and in particular in terms of aspects of learning and assessment design that focused on reflective activity by the students. In the tutorial sessions, for example, we saw the reflective discussions evidencing the efficacy of Laurillard’s ‘conversational framework’. This was because the framework for the tutorials centred on ‘iterative dialogue’ that encouraged students to be ‘discursive, adaptive, interactive and reflective’. Further, the reflective questions contained in the research records gave depth to the learning of the practical legal research skills and methods.

Given our impressions in relation to the design of the unit, we were disappointed that the research records submitted by many students demonstrated little reflection. In some cases, rather than including their own reflections, students merely repeated material from the study guide. One purpose of this article is to consider why, despite the promise of the learning design, students in the unit did not demonstrate that they had engaged in the reflection expected of them.

In this section we connect aspects of the unit’s learning design with Ramsden’s six principles of effective teaching in order to suggest that, at least in theory, the learning design of LWB143 should encourage effective learning for students through reflection.

Effective teaching can be thought of simply as the process of making student learning possible. However, as student learning occurs on a range of levels from deep to superficial, effective teaching is defined, for the purposes of this article, as teaching that creates for students a learning environment in which deep learning outcomes are facilitated, high quality student learning is promoted, and superficial approaches to learning are discouraged.

Ramsden’s first principle of effective teaching is that of ensuring student interest (which includes making learning of unit material a pleasure for students) and providing skilled explanation. Whilst skilled explanation is certainly an element of both the lectures and the tutorials in the unit, it is the inclusion of collaborative reflective practice in tutorials and in the research record assessment items that best achieve student interest.

Ramsden’s second principle of effective teaching is that of demonstrating concern and respect for students and student learning. In the learning design of LWB143, commitment to — and consideration of — students is shown most explicitly through responsiveness to the students’ reflections on the legal research process. Concern and respect for students is also made explicit through the provision of significant personal communication and feedback opportunities, both in terms of engagement in the tutorials (in which consistent ongoing feedback is provided through interactive conversation), and in terms of the research records (through the use of criterion referenced assessment and a variety of group and individual formative feedback strategies, such as online generic feedback and individual comment).

The third principle of effective teaching, according to Ramsden, concerns the provision of appropriate assessment and feedback. The research records, with a combined value of almost half the unit’s total assessment, clearly demonstrate that in Legal Writing and Research assessment is used as a significant learning tool. Further, the progressive nature of the learning that occurs through tutorials and the research record assessment items provides students with ongoing opportunities to reflect on and improve their performance against the marking criteria. This is most clearly achieved through the reflective nature of the interactions in tutorials which facilitate enhanced student understanding of their developing skills, and of the relevance of assessment in the unit to their effective learning.

The fourth principle of effective teaching involves ensuring that students are given clear goals and intellectual challenge. One of the critical elements of the way in which Legal Writing and Research is delivered is the commitment to explicit communication with the students about the aims and objectives of the unit and how the learning design and assessment items link to achieving those objectives.

Ramsden’s fifth principle concerns the creation of a learning environment that encourages independence, control and active engagement. The basis for this principle is the support in the educational literature for cooperative learning over competitive and individualistic learning. In the learning design for Legal Writing and Research, the focus on discursive, active and collaborative learning aims to engage students with ‘the content of learning tasks’ in a way that enables them ‘to reach understanding’. The integration of the research record work into the tutorial environment meant that effective learning through reflective practice was facilitated, both in a collaborative and individual sense, because it was ‘lively, dynamic, engaging and full of life’.

The final principle of effective teaching identified by Ramsden is that of ensuring that teachers learn from students. Effective teaching .refuses to take its effect on students for granted. Indeed, Ramsden exhorts that good teaching must be open to change and must involve a process of constantly trying to find out what the effects of instruction are on learning, and modifying that instruction in the light of the evidence collected.

It is with this sixth principle particularly in mind that our reflections on the unit took place, and it is our engagement with the importance of learning from the experience of students that motivated us to write this article.

Our own professional reflections, through joint discussions and our reflective journals, led us to critically assess how we might better encourage effective learning for students in the context of Legal Writing and Research in particular, but also perhaps more broadly in legal education, through enhancing approaches to the reflective aspects of the learning design.

Our critical reflections have resulted in the identification of a number of learning design issues which, in our view, impact on the ability of students to engage effectively in anticipated reflective processes.

First, and importantly, we acknowledge that the learning design of the unit could be enhanced by providing students with a deeper, more explicit tuition on the process of reflective thinking and writing. Some initial guidance is provided, for example, by way of the learning styles inventory. However, students need more instruction as to the nature of reflective practice, and how the required reflective activities might inform the development of their research skills. We suggest, therefore, that the lectures and study guide for the unit should include more information about how to engage in reflective practice, and about the importance of reflection to legal professional practice, perhaps using, for example, the principles of presentation of reflection described by Moon or the work of Boud relating to reflective journals.

The next key issue relates to the relatively rigid structure of the research records. While currently it is explicitly recognised in the unit that research is not a linear process but a recursive one requiring re-evaluation and reflection, the format of the research records does not fully enable students to demonstrate the recursive nature of their research, or require them to engage deeply in the research process and demonstrate all aspects of their reflective practice. This is because, currently, the research records comprise a series of very specific questions. According to Boud and Walker such ‘recipe following’ turns reflection into a process to be applied unthinkingly.

The impact of the rigid structure of the research records is most noticeable in the learning outcomes of students as evidenced through the recording of legal information search processes and search results. Currently, only the listing of successful searches and their results will achieve the maximum marks. Students are not required to include the results of unsuccessful searches and if they do, there is no space for the student to recognise and explain why those methods were unsuccessful. Our concern is that students cannot become critically reflective learners if they are afraid to learn from their experience. Reflective practice respects ‘doubt and uncertainty’ and there should be space for students to acknowledge their difficulties and failures so that they are truly engaged in deeply reflecting on, and as a consequence effectively learning from, the required research activities.

To enhance the design of the research records, then, we argue that options need to be explored to ensure that the structure of the records is flexible enough to enable students to demonstrate the recursive process of their research. For example, students should be required to include less successful search techniques and to explain how the research process was refined and improved. In our view this approach would better satisfy a number of Ramsden’s principles through, for example, enhancing the potential for student interest in the research process, respecting the reality of the students learning experience, and enhancing the intellectual challenge of the assessment task.

Another aspect of the rigid structure of the research records that impacts on the possibility of effective learning for students through reflection, relates to the fact that the records are divided into tasks to be completed each week. For example, while students are encouraged to build upon their list of keywords for searches, there is no space in the research record for students to show how their list has grown; they simply add to the original list of keywords without differentiating between the original keywords and the added ones. In our view, the design of the research records would be enhanced if students were able to provide a chronological record of the research process, perhaps through a wiki or blog, to allow them to demonstrate the recursive nature of their research.

The third issue we identified relates to student workload. That is, that the research records contain a large number of questions, that are often not necessarily very intellectually difficult, but that are very time consuming for students to complete. In the semester in which we coordinated the unit, some students submitted research records each up to 40 pages long. In light of the fact that students are required to complete two research records, a letter of advice and a memorandum of advice it is suggested that this represents a heavy assessment workload for students.

Sambell, McDowell and Brown, in a study of student perception of assessment on the process of learning, found that while the students perceived alternative methods of assessment as being more likely to lead to deeper understanding, several students claimed they did not have the time to invest in this level of learning and some admitted they did not have the personal motivation. We argue that because reflection is a new skill being learnt by students in LWB143, assessment workload should be carefully considered. We suggest that the number of reflective questions should be reduced to ensure students have the time (and believe they will have the time) to reflect and engage in deep learning strategies when completing the research records.

In addition, many of the reflective questions asked of students in the research records are generic to the research process rather than specific to the research problem. The design of the questions, then, could arguably be said to enable students to adopt a shallow approach to learning, rehashing the information provided in the learning materials rather than genuinely reflecting upon their own learning experience. For example: ‘What have you learnt about legal research in completing this journal? What approaches and sources do you see produce the most effective and efficient research? Why?’. Many students answered this question by referring back to the study guide and stating what it was they were expected to learn about legal research rather than relating it to their actual experience. Clearly, this is not a failing of students but is an issue for the learning design of the subject. To encourage a deeper and more effective approach to learning we argue that the number of questions in each research record should be reduced and the questions should be restated in terms of the particular research problem. In this way an answer cannot be readily found in the study guide or other study materials.

The final issue limiting students’ reflective practice in terms of the research records, and therefore compromising the possibility for effective learning in the unit, is that the assessment criteria do not currently adequately value the students’ reflections. For example, as we alluded to above, in research record one, reflection (in combination with letter writing skills) accounts for only three of the 20 total marks. The remaining marks are associated with criteria that encourage students to demonstrate their successful research skills. If the assessment criteria do not value reflection then students will not be motivated to engage with it. We argue, then, that the criteria for research and writing skills need to be separate from the criteria for reflection and that the weight attached to reflection should be increased.

Further, at the end of semester, students should be required to revisit their initial reflections on

their research skills, expectations and learning styles. In addition to completing the reflective process this would provide the unit designers with valuable feedback in relation to student learning in the unit which would assist in the evaluation of the learning design. Such an evaluative process is consistent with Ramsden’s sixth principle of good teaching: that teachers should learn from students.

These reflections have led us to acknowledge the efficacy of many aspects of the learning design in the unit in terms of making effective learning possible for students through reflection. It has also led us to make some suggestions as to how the design of the unit could be enhanced to improve the students’ learning experience. It is our hope that these reflections will contribute to a wider use of reflective practice in the learning design process for legal education.