Robbins, I --- "Best practices on 'best practices': legal education and beyond" [2010] LegEdDig 34; (2010) 18(3) Legal Education Digest 8

---

Best practices on ‘best practices’: legal education and beyond

I Robbins

Clinical Law Review, Vol 16 No. 1, 2009, pp 269–305.

Best practices has become an overused, underdeveloped catchphrase employed by industries and professions to signal an often unsubstantiated superiority in a given field. The use of the best- practices concept has also strayed incorrectly, in my opinion – into academic disciplines, including legal education.

From its inception, legal education has been torn between its roots in the heritage of the modern research university and the historic community of legal practitioners. The modern research

university was shaped and eventually dominated by academic intellectuals, who considered themselves not only teachers, but also scholars. Until recently, this emphasis on scholarship, research, and academics had a heavy influence on the organisation and operation of law schools. Law schools drifted from the traditional practitioner-directed approach and toward academic instruction presented by scholars. This transition created tension between the academic and practical aspects of legal education, a tension that is still evident today.

Over the last few decades, many legal educators and lawyers have argued for a more practical approach to teaching law students. Common complaints among students, educators, and practitioners have focused on the rigid first-year curriculum, the lack of real-world application, and the seeming disconnect between what is taught in law schools and what lawyers actually do in practice. In response to these complaints, the American Bar Association (ABA) convened a task force in 1992 to study the ‘gap’ that separated the ‘legal education community from the ‘profession’. ‘The task force authored what is known as the MacCrate Report, which presents a “Statement of Fundamental Lawyering Skills and Professional Values”, in an attempt to identify for law schools and the Bar the ‘skills essential for competent representation’.

A decade later, Kent Syverud, then Dean of the Vanderbilt Law School, was among the first educators to use the phrase ‘Best Practices in Legal Education’.

In 2007, the Carnegie Foundation for the Advancement of Teaching published a study dealing with legal education, entitled Educating Lawyers: Preparations for the Profession of Law. The Carnegie Report found the theoretical and practical aspects of legal education complementary and sought to integrate the two within the current law school framework.

Based in part on the MacCrate and Carnegie reports, the Clinical Legal Education Association published the book, Best Practices for Legal Education

Professor Stuckey and the contributing authors set about to accomplish an ambitious task: ‘In the history of legal education in the United States, there is no record of any concerted effort to consider what new lawyers should know or be able to do on their first day in practice or to design a program of instruction to achieve those goals’. In effect, Best Practices for Legal Education is an effort to improve the skills training of new lawyers, as well as to help ‘law school graduates to succeed in law practice and to lead satisfied, healthy lives’.

At many levels, Best Practices for Legal Education is an impressive work; indeed, it is an invaluable compendium of thought in legal pedagogy.

If Best Practices for Legal Education is such an ambitious, impressive, and invaluable work, then what’s my quarrel? Simply this: Nowhere in this chapter – or, indeed, in the entire book-do the authors define ‘best practices’ or explain its meaning. Rather, by suggesting mostly general, unmeasurable platitudes, the authors appear to employ the term to be all things to all people. Occasionally the authors recommend ostensibly specific practices, such as: ‘Maintain a somewhat democratic classroom’, and ‘Do not talk too much or allow the discussion to go on too long’.

Res ipsa loquitur. Why are these recommendations ‘best’ practices? Who decides? How? To present these ideas as best practices undermines the precision and usefulness that well-founded recommendations might presuppose. The concept of best practices is simply incompatible with legal education.

Best practices, as a term, traces its roots to industry and the idea of benchmarking. Not to be confused with ‘industrial espionage’, benchmarking entails a company researching other companies in a completely lawful manner in an attempt to dissect competitors’ practices, goods, and services, all in an effort to improve its own output. Within industry, best practices are the most successful means to accomplish a benchmarked goal. The creator of this industrial form of best practices and former benchmarking manager at Xerox, Robert Camp, formulated ten steps for benchmarking: ‘(1) identify what is to be benchmarked; (2) identify comparative companies; (3) determine data collection method and collect data; (4) determine the current performance ‘gap’; (5) project future performance levels; (6) communicate benchmark findings and gain acceptance; (7) establish functional goals; (8) develop action plans; (9) implement specific actions and monitor progress; [and] (10) recalibrate benchmarks [then repeat the process]’.

In 1982, Thomas Peters and Robert H. Waterman extended Xerox’s practical approach in their book, In Search of Excellence: Lessons from America’s Best-Run Companies, bringing best-practices research and implementation to mainstream American organisations.

As the number of success stories multiplied and best practices grew in popularity, three leading styles of benchmarking emerged: competitive benchmarking, cooperative benchmarking, and collaborative benchmarking. Competitive benchmarking uses information gathered from competitors to set the benchmark. It means ‘measuring your functions, processes, activities, products, or services against those of your competitors and improving yours so that they are, ideally,

the best-in-class’. Cooperative benchmarking requires that a company wanting to improve an activity contact a best-in-class firm and inquire if it is willing to share knowledge with the benchmarking team. Collaborative benchmarking consists of companies meeting and sharing information about an activity in the hope of improving internal processes based on the information they acquire.

Although the above three types of benchmarking seem to posit a single best-practices method, there is a wide range of definitions, standards, and uses across all fields. And, while best-practices methodology has many critics, it is undeniably a common and oft-revered practice among many of today’s organisations. One problem, however, is that agencies and organisations often lack a clear definition of best practices and fail to benchmark for superiority.

As used in the field of professional instruction, a best practice appears to be a starting point, an innovative idea that may lead to a set goal, but not necessarily the means to achieving that goal. In the area of corporate governance, the term best practices represents suggestions or common- sense recommendations on how a corporation should be managed. Often the suggestions are not supported objectively, but rather are qualitatively advocated by their proponents.

As the system of benchmarking and the usage of best practices has proliferated in industry, government, and academia, three approaches to best practices have emerged as models: the ‘industrial’ model, the ‘successful practices’ model, and the ‘qualitative best practices’ model. The industrial model uses comparative analysis to determine whether there is a competitive gap between an entity and industry leaders; it then uses benchmarking studies to determine how to eliminate the gap. The successful-practices model, most often used in the context of government agencies, seeks to implement practices that have demonstrated some pattern of success; it does not employ formal benchmarking studies to determine which practices to implement. The qualitative- best-practices approach, often used in corporate governance and professional instruction, focuses on producing a set of goals that an organisation should seek to meet; it does not call for a specific set of practices or methods.

The industrial model, which brought the term best practices into the lexicon, involves a comparative analysis to determine whether a competitive gap exists and employs benchmarking studies to correct inferior performance.

In his book, Best Practices in Planning and Performance Management, David A.J. Axson, former head of Corporate Planning for Bank of America, prescribes a four-step process for best-practices implementation. First, the company must identify an opportunity for improvement. Unlike the strict industrial model, Axson explains that this step can be accomplished through ‘continuous and systematic’ measurement of performance against external internal benchmarks. The subsequent three steps in Axson’s process, as well as his recommendation of detailed action plans, closely mirror the strict industrial model, but the use of internal benchmarking clearly distinguishes his method. Axson’s process demonstrates that, while there are certainly three distinct models of best practices, many approaches to best-practices implementation take aspects of each model to arrive at an individualised formula.

In the administrative regulation context, the successful-practices model seeks only to achieve practices that comply with general regulatory standards. Employed by local, state, and federal governments, these practices are ‘selected and publicized, but are not mandated, by central administrators’. Agencies do not conduct formal benchmarking studies to identify practices that would be tailored specifically to achieve the statutorily desired function; rather, they adopt these practices based solely on some previously documented success.

Another model, which this article terms qualitative best practices, is typically applied in the area of professional instruction and corporate governance. Conceptually different from the industrial and successful- practices models, the qualitative-best-practices model focuses on goals and principles for achieving those goals, rather than on concrete practices.

In 1998, the Committee on Graduate Education for the Association of American Universities issued a report that unwittingly demonstrates the pitfalls of the qualitative-best-practices model. The report sought to determine whether graduate institutions were adequately preparing their students for the careers to which they aspired and to articulate a corrective strategy for institutions doing so ineffectively. Without providing objective data to support its recommendations or even specific practices designed to achieve them, the Committee presented broad, sweeping goals that it dubbed ‘recommendations for best practices in graduate education’.

As plainly shown through a summary of these three models and their respective characteristics, significant disparities exist. There are pros and cons associated with any model of best practices, whether they are more like the strict industrial model or closer on the spectrum to the qualitative- best-practices model. Without certain attributes, however, some practices do not merit the appellation ‘best’.

Without clearly stated goals or missions, there is no way that a best practice can lead to success.

In short, the best-practices lexicon fails to articulate standards against which best practices can be measured. The term encompasses ideas that, while sounding positive, mean little to industry outsiders who cannot evaluate which practice is actually the best to adopt without costly trial and error. With the overwhelming amount of best practices out there, no one is creating an objective standard against which to measure the practices.

A basic survey of best-practices literature reveals practices that not only lack objective standards and goals, but also fail to reveal any methodology or research that might have led the author to claim something as a best practice. Even if an industry provides methodology to support its best practice, there is no guarantee that it is accurately measuring progress.

A group of professors and practitioners compiling a list of ways to do a certain task, without any study of the effectiveness of the methods, does not constitute sufficient research to create something that can properly be called a best practice.

Sometimes best practices are so poorly designed, researched, or implemented that they soon become worst practices.

Even within the models of best practices, disagreement exists over how to achieve best practices. Defining best practices as ‘successful practices’ conflicts with the industrial model, which was created because many people in the business world thought industries should experiment more than they did. The model used prior to benchmarking, the ‘rational model’ on which businesses based managerial decision-making, was found to be overly cautious and, therefore, to stifle progress. Successful practices allow organisations to become complacent; they provide no incentive for innovation or to search for excellence in implementing directives.

In far too many instances, authors fail to define the term best practices and leave it to the reader to glean the meaning from the context. The ideal definition should track the words composing the term, even if only with dictionary definitions. Thus, the term should be defined as those actions that surpass all others in pursuit of a goal or purpose according to some objectively measurable standard. This definition can serve as the basis for a template to determine whether a purported best practice is in fact a best practice.

The template requires the presence of three conditions in order to label any action or actions best practice. First, as with benchmarking, those who attempt to discover or define a best practice must agree on the goal that the practice is intended to achieve. To formulate best practices the goal must be known, not debated.

Second, the model definition requires that, at any given time, there is only one way to accomplish the goal that in relation to all others is superior. Best implies surpassing all others based on a measurable standard, not merely succeeding in an endeavour.

Third, as part and parcel of the second condition, best practices must be objectively verifiable in relation to all other current or previous practices. This condition suggests that one interested in formulating best practices could look to the process of benchmarking to arrive at a best practice. Thus, benchmarking is incorporated into the template for the purpose of evaluating whether a practice is in fact a best practice.

Assuming that all three conditions are present, one seeking best practices could discover those ‘model best practices’ by performing a benchmarking study similar to Camp’s approach. One must look internally and externally to the same and similar products to discover a process that holds superiority over all others. One must then collect data and determine which entity achieves the sought after goal most effectively – what Camp terms the ‘industry leader.’ In addition, one must analyse the data and determine the performance gap – the difference between an entity’s current actions and the industry leader’s superior actions. Finally, one must set goals for implementing those newly discovered superior actions and formulate actual plans for implementation.

For a best practice to have value, it must be adaptable by a broad range of organisations, even if those organizations all exist within the same industry.

Legal education is different from the industry examples provided earlier in this article. Goals for legal education vary among, and even within, institutions.

Although most law schools have similar first-year curriculums, the way in which each law school approaches legal education can vary greatly.

Not only are there diverse goals among law schools, but the goals of individual law students or distinct groups of law students (e.g, full-time vs part-time students) vary as well. While many students come to law school to learn the skills necessary to obtain a position at a large law firm, other students have no desire even to take the bar exam or become practising attorneys. Many legal

educators acknowledge that they are attempting to offer a legal education that will cater to a wide variety of wants and needs, as well as to diverse student populations.

Most law schools actually encourage this type of diversity.

Not only do missions differ among law schools, but Best Practices for Legal Education concedes that most law schools actually have multiple missions. It is impossible to achieve a goal in a manner surpassing all others when the goal itself is in dispute or in flux.

Best Practices for Legal Education lists both preparing students for the bar examination and preparing law students for practice as areas in which law schools need to improve. The authors continue to state other goals for law schools, including improving access to justice for low-income individuals, teaching students to conduct themselves more professionally, and attending to the well- being of students emotionally and psychologically. These numerous goals are merely the starting point from which the book offers a multitude of techniques for improving legal education.

With this uncertainty, it is impossible to achieve a goal in a manner surpassing all others.

The second requirement for determining a best practice in a given area is that, at any given time, there must be only one way to achieve the agreed-upon goal that is clearly superior to all others. This precondition is equally absent from Best Practices for Legal Education; in- deed, it may be unattainable, given the nature of legal education in general. At times, the book even contradicts itself regarding the means of providing the best possible legal education.

The debate over how best to teach students to grasp legal concepts is a symptom of the contest between the practical and academic corners of legal education. Law schools are typically located at the junction between academic and practitioner interests and tend to find it difficult to balance the two interests to the satisfaction of all involved. Today’s law schools have only seen this debate over methodology grow, with the creation of integrated first-year curriculums, legal writing skills programs, and new first-year elective courses.

Best Practices for Legal Education augments this confusion by stating that the traditional case-method technique should continue to be used, but adding that clinical legal education’s emphasis should be greatly increased, along with ‘simulation-based courses’ such as ‘Interviewing,’ ‘Counseling’ and ‘Trial Practice’. While the book outlines many interesting and potentially valuable ways in which legal education could be improved, or at least varied, these suggestions are formulated as ‘best practices’ (for simulation-based courses) within ‘larger best practices’ (for experiential courses) that would eventually accomplish the diverse goals discussed above (also conveniently labelled ‘best practices’). This aggrandising, nesting-doll technique for addressing best practices further illustrates the inappropriate use of the term and its application to the context of legal education.

Finally, legal education cannot be endowed with a set of best practices because those practices cannot be objectively verified in relation to all other current or previous practices in the field. This final precondition is arguably the most important of the three because of the very nature of best qua superior to all others. Thus, the authors of Best Practices for Legal Education use the term inaccurately. One of the goals of the book is to ensure that students meet the ‘desired level of proficiency at various stages of a student’s law school career or upon graduation’. This goal and the book’s recommendations will not produce best practices. Rather, they will produce (at best) practices that provide students with the means to become minimally proficient in the skills necessary to practice law, assuming that those skills are agreed upon by legal educators.

Verifying which law schools have in fact achieved the goal of teaching students to perform a given skill in the best possible manner is in itself a highly debatable and difficult task. One controversial method of judging the quality of a law school in recent decades has been the annual survey conducted by U.S. News and World Report Law schools routinely engage in not-so-subtle campaigns to influence the outcome of the surveys, from sending out glossy brochures, which have come to be known among legal educators as ‘law porn’, to enticing students to apply to their schools, thus skewing factors that are favourable to their rankings.

The legal academy’s internal debate epitomises the point that objectively determining the quality of a legal education obtained at a particular law school in comparison with other law schools is a chimerical goal. As a field, legal education is incapable of having any set of objectively verifiable best practices, because the nature of measuring quality among law schools and within legal education is inherently subjective and, therefore, open to extreme (and perhaps desirable) disagreement. Thus, the use of the term ‘best practices’ when discussing legal education is an unsubstantiated indication of superiority, a prime example of possibly good or better practices masquerading as best practices.

Successful benchmarking depends on having an objectively verifiable, agreed-upon industry standard. Legal education cannot meet this final precondition for determining a best practice.

The best-practices concept thus has no place in legal education (and, presumably, in many other educational fields). Efforts to employ it fail all three parts of the paradigm: there is no one

agreed-upon goal; there is more than one way to accomplish the various goals; and recommended practices are not objectively verifiable in relation to all other current or previous practices.