Legal Education Digest
W J Mlyniec
Clinical Law Review, Vol. 18, No. 2, 2012, pp. 505-592
Clinical education has grown dramatically in terms of the number of law schools supporting clinical courses and the number of faculty members now teaching in them. The dedication of clinical educators to creating a distinct pedagogy has resulted in hundreds of articles being written about lawyering, teaching methods, supervision techniques, grading, and a host of other topics related to teaching the reflective practice of law, the role of lawyers, and the place of lawyers in a democracy where the rule of law is sometimes applied unequally. New clinical teachers, even those who once were clinic students themselves, must find the amount of information daunting. When approaching their new tasks, new teachers often ask themselves ‘Where should I begin?’
Despite the complexity of clinical teaching, few schools train new clinicians to understand and incorporate ‘reflective learning teaching techniques as they make the transition from law practice to clinical law teaching’. Instead, more experienced faculty, to the best of their ability, mentor their newer colleagues during their early years as teachers, but rely on clinical conferences and experience to impart, over time, the knowledge and skill required to perform the work well.
This article describes the classes we conduct at Georgetown to initiate graduate clinical teaching fellows into the academy of clinical teachers. The fellows training course, now called ‘An Introduction to Clinical Pedagogy’, began in 1998.
In developing our course, we found that the teaching model used in most of the Georgetown clinics embodied six truths. First, we believe that teaching in a clinic is different from and more expansive than training lawyers in a purely professional setting and different from teaching in a doctrinal course. Second, clinical teaching is goal driven and based on backward design. Third, faculty intervention is intentional and based on making choices that further a student’s education. Fourth, clinical education should be based on ‘Justice’ in the most expansive meaning of the word. Fifth, client and student needs are equally important in a clinical program and that neither need be sacrificed for the other. Finally, clinical teaching is personal and designed to accept students where they begin and to maximise their potential to learn.
After many conversations and many experiments, we decided that there were several aspects of our craft that new teachers had to learn as they entered the profession. These topics are (1) the history and contemporary status of clinical education in the academy; (2) techniques of supervision and reflection; (3) the relevance of values, ethics, and morals to teaching students in a clinic; (4) pedagogical methods for structuring classroom teaching; and (5) the interrelationship of feedback, evaluation, and grading in clinical courses.
The goals of the first classes are to introduce the new fellows to the history of clinical education, to the fundamentals of clinical pedagogy and to the way those fundamentals have evolved in the Georgetown clinical program, to each other, and to the faculty. Another goal is to demonstrate techniques from this form of learning and teaching, and to subtly begin the transformation of the new fellows into clinical teachers and supervisors. We want to instil a sense of confidence among the fellows going forward but also a sense of humility about the work we and they are about to undertake.
Fellows and other new clinical teachers seldom know the pioneer theoreticians of clinical education or the early battles that were waged for its acceptance into the academy. As we developed the pedagogy course, we thought that all new teachers, especially those who hope to have a career in academia, should be familiar with the work of the pioneer clinical teachers and be grounded in the work that has evolved into clinical pedagogy.
We begin the first class by showing a slightly edited version of the movie, The Seeds of Change, an oral history produced by Professor Sandy Ogilvy’s that traces the early history of the modern clinical education movement. After watching the movie, we ask the fellows to engage in a quickwrite about what brings joy to their teaching endeavours, basing it on past or anticipated experiences. We also suggest that they write about their fears and expectations as they begin their new work and about issues that were raised in the movie.
We try to relate their previous experiences, fears, and expectations to the history of the clinical education movement as gleaned from the movie and the assigned readings to demonstrate to the fellows that they are part of something greater than they even imagined.
The conversations during the first class tend to bring to the surface the major systemic issues facing clinical education. Questions regarding the tension between education and service, methods for intervening into the student’s cases, the structure and case selection methods of various clinical programs, the fellows’ role in the clinic, and the notion of goals always seem to arise.
Understanding the history of clinical education leads easily into the next classes that introduce the new fellows to the central methods of the pedagogy. Supervision is the essence of clinical education and all new teachers must learn appropriate intervention techniques to maximise student learning and client satisfaction. Clinical pedagogy is intentional, experiential, reflective, and dependent upon the context of the interactions among faculty, students, and clients.
We introduce supervision and intervention techniques in three classes during the first two days of the course. Our goals for these three classes are to explore the methods of directive and non-directive intervention, modelling, and other intervention techniques that teachers use when students are developing case theories, investigation strategies, and policy alternatives; when they are researching and drafting various legal and policy documents; and when they are planning and performing interviews, counselling sessions, and hearings. We discuss the purpose of intervening into student performances on projects and cases, demonstrate the various methods a teacher can use when supervising students, and permit the fellows to practice intervention techniques through role-playing.
Experienced clinical teachers now recognise that appropriate intervention can be telling a student what to do, leading them through an analysis of a problem using a questioning method that is not so different in style from the Socratic Method, or modelling a task. Each choice of a method reflects an assessment of the case needs, the student’s mode of learning, and the student’s ability and level of understanding. Sometimes, asking the student ‘why’ is the catalyst for learning.
Fellows also will be aware of the difficulties they will face when choosing a particular issue for intervention out of the several that may arise in a supervision session. They will understand the competing pressures between advancing the case or project and educating the students, and will understand why different intervention techniques are appropriate in particular situations. They will also learn that there is no orthodoxy in supervision. It is an art, dependent on context, and requiring multiple teaching tools that will improve with experience.
The fellows also explore the qualities that they believe good teachers and supervisors exemplify. Using quick-writes and discussion, they create a list of traits such as intellectual excitement, interpersonal concern, effective motivation, and commitment that successful teachers possess. Each act we take and the words we use must be directed towards improving the student’s ability to make choices, take actions after the intervention, and reflect upon the reasons for his or her actions.
We have created role-plays that lend themselves to intervening on a number of different issues. The issue may be one of client relations, skills technique, values or ethics, client or partner dynamics, or personal difficulties. The simulations are also designed to show the different forms that an intervention can take. Some are very directive and others are non-directive. Some aspects of the intervention are done well and some are done poorly because new teachers must learn both the value of good supervision and the damage to learning, lawyering, and client satisfaction that poor supervision techniques can cause.
This class is successful if the new teachers understand that a supervision session is part of a larger learning continuum that includes subsequent supervision sessions, classroom work, case round sessions, and post-task reflection. It is successful if the fellows understand that while some interventions may have to be made instantaneously, it is important to spend time thinking about issues and potential outcomes in advance of the supervision session in order to maximise the success of the intervention.
The second class on supervision concerns the special considerations that arise when teachers intervene into a student’s writing project.
Writing projects, unlike hearing preparation, often provide more time for critiquing both the mechanics and substance of the writing task. Writing projects, unlike other lawyering tasks, are usually critiqued by the teacher outside the presence of the student. A student’s letters, memos, pleadings, briefs, and policy documents, however, undergo multiple drafts and critiques only before the final product is submitted.
When supervising non-writing lawyering tasks, teachers engage students in conversations wherein the critique unfolds in response to a suggested plan or idea.
New teachers have to be conscious of the student’s sensibilities and need to learn how to convey the information to students in nonthreatening ways. Since most people are protective of the words they write, new teachers need to learn to tailor the language of these interventions so that students understand that critique is not personal but directed to achieving the goals of the clients.
Discussions in the small group demonstrate to the new teachers that they will have to use a blend of techniques, perhaps more directive ones as to agenda and immediate case concerns and less directive ones with planning and analysis. What is important is that new teachers understand that supervision encompasses every interaction they have with students and that they must always be intentional about why they are choosing one method of intervention over another or one issue for intervention rather than another.
New teachers may respond to a difficult supervision situation in one of three ways. First, they may assume that fault lies with the student without considering their own role in the unfolding dynamic, and focus solely on the student’s conduct. Second, they may assume the opposite and begin to believe their teaching ability is inadequate or that they are too inexperienced to resolve the impasse. They then focus solely on themselves and fail to consider outside factors like the client’s needs or behaviour, or the student’s emotional or cognitive challenges. Third, they may assume that their clinic’s structure is sound and their supervision is appropriate and that this event is an outlier that cannot be resolved. If the problem is not affecting the client, it may remain unresolved. If it affects the client, the supervisor may just take over that part of the case or project.
Our goals for the class are to demonstrate a method that helps fellows identify specific behaviours that contribute to an impasse or to the less than ideal performance, to identify possible contributing factors that might help to clarify the fellow’s understanding of the context in which the sub-par performance or pedagogical impasse is occurring, to review potential responses, and to analyse their appropriateness before an intervention occurs.
The adaptive supervision model demonstrates a number of ways clinical supervisors can change methods in order to make the clinical experience more satisfying and productive for the student while protecting the client’s interest.
The method begins by identifying a dysfunctional behaviour that the fellow could not remedy with typical planning and critique interventions. Our method contemplates four different categories of dysfunctional behaviours that commonly appear when students are not working up to expected standards. The first category relates to productivity. The behaviours usually associated with insufficient productivity are arriving late or failing to attend case meetings, or failing to produce work within previously set deadlines.
The second category of dysfunction involves interpersonal relations. This dysfunction is evidenced by persistent rejection of, or agreement with, the teacher’s advice without analysis or critique. It may also appear as persistent conflicts among student partners or between the student and the teacher.
The third category of dysfunctional behaviour is emotional. It is typically demonstrated by anger, passivity or indifference, undue frustration, pessimism, anxiety, or sometimes, hypercritical or volatile reactions.
The fourth category relates to cognition, which focuses on poor language skills or the inability to reflect on performance.
Discussing the fellow’s supervision difficulty through the adaptive model permits the fellows to observe and focus on the behaviour that is creating an impasse rather than on the student’s character.
We teach our fellows to begin the search for contributing factors by looking at the teacher first because it avoids premature labelling of the student and because the teacher may indeed be the cause of the behaviour. In the language of classical clinical pedagogy, is the teacher being too directive or too non-directive? Excess direction can result in the student perceiving a demand for conformity with the teacher’s perspective and sometimes non-direction can create a damaging opacity in instructions.
Alternatively, could the workload be too heavy given the student’s other commitments to the clinic or to other aspects of his or her life? Might the personality of the faculty member be contributing to the dysfunctional behaviour?
The student’s own mood or personality tendencies or disorders might be the cause. Learning or physical disabilities can also be contributing factors. Solutions to these kinds of problems may be beyond the expertise of the teachers. Students with serious emotional or mental health issues may need to be referred to appropriate professionals to address those needs.
Once the contributing factors are identified and analysed, the teacher can begin to think about potential responses. The response may involve adjusting the supervisor’s approach or the student’s role in the case. Expectations may have to be adjusted. Workloads can be altered. The cases may be too complex for a clinic course. The complexity of the subject matter of clinic cases may require changes in student selection process of the clinic.
A lawyer’s ability to interview, plan, counsel, write, examine witnesses, solve problems, and advocate depends on the personality and values of the client and the lawyer and how those values affect the client’s claims. Assuming the role of a lawyer and performing these tasks in the context of real cases and projects are basic tenets of clinical education. They are also essential to professional development and transformative learning.
Learning to teach and supervise those skills in the context of human interaction requires knowledge and understanding of what values clients, lawyers, and other people bring to legal representation.
The legal profession espouses certain values that it requires or at least encourages all lawyers to maintain. The MacCrate Report established ten skills and four values lawyers should possess when they enter the practice of law and exhorted law schools to integrate them throughout the curriculum. The fundamental values are (1) provision of competent representation; (2) striving to promote justice, fairness, and morality; (3) striving to improve the profession; and (4) professional self-development.
Most student practice rules restrict students in clinical programs to representing poor citizens and non-profit organisations. Thus, legal work that emanates from a clinical program will necessarily show a preference for poor people and for those public interest organisations that often challenge political and commercial interests. No matter how neutral a teacher tries to be, the values he or she maintains with respect to the legal profession and with respect to the common good will imbue the work of the clinic.
In a well-structured clinical course, the issues of values, ethics, morals, assumptions, and difference can all be explored in classroom discussions or case rounds. More often than not, however, they will arise in supervision sessions concerning the theory supporting the claims raised in the case or project and by the methods used to advance the claim.
Understanding the nature of values education and identifying the values that students, faculty, clients, and others bring to a client’s case is critical to situating clinical education into a law school curriculum and is critical to providing effective legal assistance. New teachers must understand how values affect their relationships with students and how they affect students’ relationships with clients.
Students come to the clinic with individual perceptions about ethical matters. Often they are unaware that their personal opinions are at odds with professional standards. Conversations about the difference between their values and the ethical rules cannot be casual. The conversation must be an intentional inquiry that not only leads to the resolution of the immediate legal problem but to a discussion about the assumptions and values that underlay the student’s choices.
Because they are unfamiliar with the lives of people who are not like them, students and teachers often make unwarranted assumptions about clients’ values, experiences, wishes, and motives.
New teachers must learn to increase students’ abilities to situate their client in a cultural context, become aware of their own cultural context, and improve their communication skills accordingly in order to maximise client service.
Thus, new teachers must learn to account for the individual differences in clients and help students to develop a deeper understanding and awareness of the world surround them.
New teachers must learn to introduce dissonance into the ways students currently think of things to help them contemplate differing perspectives. Through discussions in class and in supervision sessions and through self-reflection exercises, students can develop more mature understanding and tolerance.
Although most interactions between a student and a clinical teacher occur in case or project supervision sessions, virtually every clinical course involves classroom teaching. Because clinical courses seldom enrol more than twenty students, teachers are able to employ many techniques to convey information. Like most law school professors, clinicians employ traditional Socratic style lectures, discussions, and problem solving exercises in their seminars. They have added simulations, performance critique, and case rounds to their classroom repertoire.
Many clinical teachers acknowledge that evaluation and grading are two of the more difficult aspects of their jobs, in part because of the evaluation system required by their schools.
Clinical courses present faculty with many challenges when they attempt to adapt the evaluations arising from clinical methodology to the school’s predominant teaching and grading system because the two are inherently different.
Assessments in clinical courses are based on patterns of behaviour, performance, and growth reflected in multiple performances of many different tasks rather than on the performance of a single examination or paper. Since such assessments are difficult to make, some clinical faculty engage in rigorous evaluations but award pass/fail or adjectival grades rather than traditional letter or number grades. Others, however, attempt to adapt a complicated evaluative process into quantitative rankings within a traditional grading system.
Clinic teachers provide feedback at many stages of the lawyering process. While giving feedback, teachers often suggest that students consider different approaches to a witness or alternative ways in which an argument can be designed. These interventions occur in formal supervision sessions, and sometimes, albeit reluctantly, during the actual performance of an interview, a deposition, or a hearing.
Most of this feedback is task focused and not student focused. It is objective, detailed, immediate, forward looking, non-judgemental, intentional, and sometimes, but not always, reflective. These moments of feedback are critical to moving a case or project along. The shortage of time that all clinical teachers experience seldom permits more than corrective suggestions, even when there is more to say in terms of evaluation and reflection.
Self-evaluation forces the students to become engaged in the reflective process and enables them to explore their actions more critically. It will also ensure that the student has reflected on his or her actions in each of the areas the supervisor has identified as being essential for student progress.
Clinical education sometimes challenges patterns of behaviour that are so deeply in- grained that a criticism of the performance is not easily separated by the student from a criticism of the self.
The course we have created has helped us prepare our new teachers for their teaching and supervision tasks. We hope that our experience provides some insight to other teachers as they begin their careers or begin to design a teacher- training program.