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Baron, P; Corbin, L --- "Thinking like a lawyer/acting like a professional: communities of practice as a means of challenging orthodox legal education" [2012] LegEdDig 46; (2012) 20(3) Legal Education Digest 45

Thinking like a lawyer/acting like a professional: communities of practice as a means of challenging orthodox legal education

P Baron and L Corbin

The Law Teacher, Vol. 46, No. 2, 2012, pp 100-119

For some years, there has been recognition that law schools have both a moral and an ethical obligation to the public and to the profession to prepare students to succeed as professionals.

This notion of ‘professionalism’ clearly encompasses notions of shared norms, high standards of competency and conduct and, importantly, a sense of public obligation.

Recent scholarship suggests that the need to prepare lawyers for professional practice is more pressing now than in the past. Colby and Sullivan, for instance, argue that, as law has increasingly become more market-driven, law schools must prepare their graduates not only for ethically supportive contexts, but also for: ‘contexts that undermine the profession’s fundamental purposes and standards ...’ Perry, among others, sees the pressing need to educate for professionalism arising in relation to concern about lawyers’ well-being, a topic that has been of much interest in the US and Australia in recent years. He argues that legal education needs to move away from its traditional tendency towards intellectual abstraction to a more integrated approach that acknowledges the ‘human implications for individuals and society’. Such an approach will bring a greater alignment between the legal professional, her intuition, moral commitments and sense of purpose. Being a professional, Perry argues, ‘is about engaging other people as much, maybe more, as it is about applying theories and facts’.

Studies have highlighted the strong socialisation process of law schools upon their students. This is, indeed, a time when the foundations of professional behaviour can be inculcated. Yet, to date, that socialisation process has not necessarily been directed towards professionalism, nor has it been positive for students’ health, well-being and values.

Traditionally, law schools have taught their students to ‘think like lawyers’, that is, the focus has been upon teaching the substantive law and skills of argument.

Yet this approach has been the subject of much criticism. Krieger refers to the work of Mertz, who conducted a study of eight US law school contracts classes and concludes that the resulting strategies adopted in learning to ‘think like a lawyer’ are ‘dehumanizing’ and suggests that students are ‘abruptly forced to set aside their sense of morality, fairness, and sensitivity to human suffering ... Fluidity of position, to enable arguing either side of an issue, is encouraged and further promotes an instrumental, amoral mindset.’ This is not to suggest that the adversarial method should be abandoned, rather that it should not be presented as the only paradigm for legal practice.

While emphasising the intellectual aspect of lawyering, legal positivism encouraged the view that law and legal practice were objective and amoral. Webb, for instance, suggests that the focus upon ‘law as rules’ encourages students to consider themselves as ‘theoretical spectators’, who form their views without moral reflection or at the very least, consider ‘moral conduct as rule following’. Further, this approach means that, when faced with an ethical dilemma, lawyers will tend to look to the solicitors and barristers rules for an answer rather than consulting their own moral values. This is because legal education inculcates the view that the ethical behaviours expected of legal professionals derive from the rules of professional conduct.

In Australia, the problem of the narrowness of legal education in its focus upon ‘thinking like a lawyer’ has been exacerbated in the view of some critics by the reliance on academic subjects required for legal practice, commonly known as the Priestley 11. It has been argued that this has reinforced the content-based pedagogy at the expense of skills and values. The ALRC, for example, has noted that Australian legal education does not adequately prepare graduates for the changing legal workplace. It argued that legal education should focus on what lawyers need to be able to do rather than what lawyers need to know.

Of course, it is important to acknowledge important efforts to widen out legal education so as to prepare students for professional practice by way of the introduction of generic and professional skills and ethics subjects into the curriculum.

Yet, despite these initiatives, the teaching of both skills and ethics has attracted some criticism. Some argue that skills are more appropriately taught in practical legal training courses which follow a law degree in jurisdictions such as Australia; and much has been written about the efficacy of ethics courses in instilling ethical understanding. More recently, the Teaching and Learning Outcomes (TLOs) for Australian law school graduates established six threshold learning outcomes, one of which is ‘[e]thics and professional responsibility’. This TLO requires graduates to be able to exercise ‘professional judgement’, a term defined in the accompanying notes as including ‘an understanding of the consequences of professional decisions’. It remains to be seen how effective the introduction of these standards into legal education will be in attaining the goal of transitioning law students into professionals.

Much concern has been expressed about law school pedagogies, which tend to prioritise performance-oriented students over mastery-oriented students. Mastery-oriented students look for challenges, apply effort and persist in the face of obstacles. A mastery oriented student views learning as valuable in itself, and as an ongoing process. Performance-oriented students, on the other hand, view tasks as challenges to self-image. Setbacks are understood as personally threatening, so that these individuals tend to focus upon activities at which they can excel, and avoid experiences that are difficult. Law schools are the key gatekeepers for entry into the profession in Australia. Law schools do acknowledge this role, but prioritise intellectual ability in the screening process, particularly for school leavers whose entry to law school is based on tertiary entrance scores. Not only do law school entry procedures tend to favour performance-oriented students over mastery-oriented students, but traditional pedagogical structures in law encourage and reward performance, rather than mastery. For instance, critics of the traditional law school curriculum argue that law schools emphasise grading systems rather than evaluation systems; norm-based, rather than criteria-based assessment; and student rankings. Such emphasis has been described as ‘wholly counterproductive in a program designed to prepare individuals to serve justice’.

Further, the pedagogy of law schools has remained largely based on the transmissive model. This is slowly changing, but the majority of law courses are still taught by means of lectures and tutorials, or some variation on this traditional model. The transmissive model tends to focus upon the intellectual content of the course and to convey knowledge devoid of context.

Studies have found that the most successful law students (and, we would argue, law students most likely to succeed in the profession) are mastery-oriented, rather than performance-oriented, individuals. Retaining this performance focus, argues Christensen, may mean that law schools will continue to turn out ‘successful’ law students, that is, students who do well in law school, but may result in lawyers who lack the self-efficacy to competently practise law.

The recent Carnegie Report suggests that in order for students to develop as professionals, students need to complete the ‘third apprenticeship’, that is, students need to be acquainted with ‘the purposes and attitudes that are guided by the values for which the professional community is responsible’. To accomplish this end, the Report claims that ‘students need access to forms of social interaction that embody the basic understanding, skill, and meaning, that, together make up the professional activity’. The Report also explicitly encourages the legal profession to associate with academia, reasoning that they will have the opportunity to gain insights about legal practice drawn from empirical studies. Colby and Sullivan expand this idea further, suggesting that professional educators ‘establish alliances with practitioner groups, licensing and accreditation bodies, and other key institutions of their field’. In our view, such an approach implicitly draws on the concept of communities of practice in legal education to inform teaching and learning.

The term ‘community of practice’ was originally coined by Lave and Wenger in their study of ‘apprenticeship as a learning model’. This study showed that apprentices learn mostly from their peers and more advanced apprentices. This community acts ‘as a living curriculum’ which results, not just in a unidirectional learning outcome, but ‘learning on the part of everyone’.

For educational purposes, Wenger has proposed the idea of a community of practice as a theory for learning. He suggests that we, as individuals, do not learn ‘separated from the rest of our activities’ but instead learn ‘in the context of our lived experience of participation in the world’. In other words, learning is a social and experiential phenomenon, where individuals negotiate meanings as they experience everyday life.

Wenger distinguishes his theory of learning from other theories, including constructivism which holds that students construct knowledge through experience and reflection. However, there do appear to be similarities between communities of practice and constructivism. Communities of practice theory, like constructivism, is opposed to transmissive models of education, or so-called ‘banking’ concepts of education where the teacher ‘deposits’ information into student ‘storage containers’. As Wall points out, these latter models give rise to a dehumanising process that denies students the ability to draw on their own experiences and which does not encourage critical reflection or creativity.

While it is important to construct theories, the goals they set can only be achieved when they are applied in practical terms. We therefore propose to suggest some practical teaching strategies and initiatives, drawn from ideas of communities of practice, that we believe may help humanise the study of law and contribute to the greater well-being of our students.

Studies suggest it may be important to attach more significance to the conduct exhibited by students in law school than is currently the case, as this behaviour may predict how they will behave as professionals. Meeting deadlines, treating other students and staff with respect, submitting quality work: we could encourage students to understand that these are marks of professionalism and the expectations of legal practice; they are not simply demands universities make for their own sake. Currently the goal-oriented approach of traditional legal education causes students to adopt a ‘near enough is good enough’ approach to their studies. Careless work is not acceptable in legal and professional practice and nor should it be acceptable at law school.

Emphasising participation in the community of practice could encourage the view that fellow students are peers and thus ‘encourage trust and collaboration among students through conversation and shared experiences, rather than to emphasise competition and individual achievement ...’ Astin asserts ‘that the strongest single source of influence on cognitive and affective development is a student’s peer group; the greater the interaction with peers, the more favourable the outcome’. Tani and Vines, however, suggest that currently in Australian law schools, students are yet to see themselves as part of a peer community. They report that law students are more interested than other students in ‘developing a network of friends that will be useful for their professional career’, that is, students take an instrumental rather than a collegial approach. We could foster more collegial approaches to the study of law, encouraging more collaborative and peer-review experiences.

Students can learn much from those who have gone before: senior students, alumni, and members of the legal profession more generally. Often these encounters are formalised as mentoring programs which particularly aim to help the mentees transition into a new environment, whether that is from school into university, or university to legal practice. However, other interactions are equally valuable: for instance, having legal practitioners and alumni ‘tell their stories to the students and tell them about their careers’, particularly when the invited speakers ‘open themselves up to questioning’.

Emphasising communities of practice would challenge the tendency towards abstraction in legal pedagogy. Communities of practice are said to be the basic building blocks of social learning systems as they define competence in a given context. They tend to emphasise the importance of so-called ‘soft knowledge’. Both intellectual/cognitive development and skills development (in the language of Sullivan et al., the first two apprenticeships) have been described as hard knowledge, that is, knowledge that can be ‘articulated, abstracted, codified, captured and stored’. The third apprenticeship, also known as ‘soft knowledge’ or the ‘hidden curriculum’ consists of the ‘cultural mores that are transmitted but not openly acknowledged, through formal and information educational endeavours’. This is knowledge:

which the newcomer cannot learn simply by demonstration or instruction. It includes learning the language and unspoken conventions of the community. Soft knowledge is developed and learnt through being socialised into the community and through interaction with the existing members.

It is this third apprenticeship that challenges students to determine their own identity and purpose as members of their professional community and which is so often neglected in law school curricula.

Emotional intelligence is ‘a set of emotional competencies involving self-awareness of emotions, empathetic awareness of the emotions of others, and the ability to use this awareness to influence the behaviour of others’. Montgomery points out that advocacy, negotiation, and counselling rely on these elements. In particular he suggests that empathy has particular significance for professionalism as it can engender in students/legal professionals ‘ways of knowing and understanding’ the emotions and therefore the situation or experience of others. He concludes that ‘lawyers with higher levels of emotional competences should be less likely to engage in uncivil behaviour and more likely to give high priority to other interests, such as improving the justice system’. By adopting emotional intelligence competencies teachers make it clear to their students that ‘who they are and what they believe matters’. Such an approach is believed to reinforce to students that their own feelings are important and allow them to retain their integrity and build their confidence in themselves. These competencies can be incorporated into law subjects by, for example, using student portfolios requiring students to reflect on their feelings about the factual circumstances of a contractual scenario; their clinical experiences; and as part of a subject on professionalism.

While litigation has traditionally been the focus of law schools, some critics argue that it contributes to the dehumanising of the legal process. The Carnegie Report suggests that law schools, in teaching students to ‘think like a lawyer’ actually teach them how to ‘think like a judge’. Lande observes, however, that mediation, arbitration and other dispute resolution practices are now ‘the mainstream of legal practice’ and that these so-called ‘new lawyering’ practices emphasise relationship and dialogue over litigation and advocacy; and an increasing recognition that clients should be involved in problem-solving, rather than the assumption that lawyers, as technical experts, should drive decision-making. Lande’s argument would suggest that law students need more exposure to dispute resolution; dealing with difficult cases; more exposure to working to resolve such cases with the assistance of other professionals; and greater sensitivity to the ethical issues often involved in such cases.

A progressive community needs both ‘strong core practices and active boundary processes’. For Wenger, the community that is too insular, that does not engage at its boundaries, risks stagnation in the sense that communities of practice can ‘learn not to learn’, becoming ‘cages’ and ‘hostages’ to their own histories. One of the potentially transformative effects of communities of practice is to define, redefine and challenge our assumptions about legal education, and about lawyering itself, particularly in light of the movement away from traditional adversarial practices and towards alternative forms of dispute resolution practices.

Re-visioning the teaching and learning of law through the lens of communities of practice theory would result in a very different model from that which currently prevails. The available literature, however, suggests that such re-visioning may not only produce more professional law students, and ultimately, better lawyers, but may also contribute to the health and well-being of the profession.

Studies have documented an abnormally high incidence of mental health problems among law students in both Australia and the US. These studies suggest issues of poor mental health and well-being arise in the first year of the study of law. Causes identified are ‘student workloads, the impersonal nature of legal education, the isolation of law students and the emphasis on linear over creative thinking; the competitive nature of law school, and the fact that law schools tend to be less interactive and supportive than other university environments’.

Opening our law schools to communities of practice may help students recognise what is important – what matters to the members of the legal community – and therefore provide them with an identity and a sense of belonging.

Fostering a sense of belonging to the legal community, of encouraging students to look for meaning in their work may, in the long run, contribute to a healthier and happier legal profession.

At the same time, the existing profession may benefit from greater involvement in legal education. Mark observes that the practice of law can be toxic, and lawyers can become adversarial, pessimistic and risk averse. He notes that ‘such emotions not only affect how we think but also the values we hold and the attitudes we choose’. He advocates greater emphasis upon emotional intelligence in legal education. Involvement in law school by legal professionals in initiatives to improve the well-being of students may work at the boundaries of the profession to encourage healthier and more reflective practices.

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