Part Two: Making it Real – A Legal Education in the Public Interest

Part Two: Making it Real – A Legal Education in the Public Interest

Part One of this blog (The End of a Love Affair? Why I Despair About Legal Education) was pretty bleak. It articulated my frustrations with the disconnect between legal education and the realities of legal practice and client service, and our slow steps towards meaningful change.

It also clearly resonated with many of you whom I heard from last week.

In that earlier piece, I highlighted three fundamental disconnects:

  1. Law school classes rarely describe or simulate the work that lawyers actually do. This includes neglecting discussion of the dramatically changed context of legal practice in the 20 years (e.g. the decline of trials, record numbers of self-represented litigants).
  2. Clients are invisible in law school. As a result, the translation of legal rights and remedies into actual services (especially in light of the unaffordability of legal services for many Canadians) is also off the agenda.
  3. Law students (who are primarily focused on getting a job) and law faculty (who are primarily focused on publishing research) live in parallel but separate universes.

In Part Two, I want to start by acknowledging initiatives that do make these connections. The last few years have seen an uptick in the number of externships and clinical programs in Canadian law schools. A few examples: the curricular and extra-curricular work being done by the clinics and intensive placements offered at Windsor Law and Osgoode Hall Law School; the projects of Pro Bono Students Canada;  the Family Law Incubator at the University of Calgary; and the Law Apps course being pioneered by Professor Katie Sykes at Thompson Rivers University. These and other examples from around the country are authentic and valiant efforts to connect legal education to reality.

But praiseworthy as these types of initiatives are, they are the exceptions that prove the rule. Many struggle on a shoestring with short-term resources, and as a result lack strong pedagogic models for supervision and deep reflective learning. They are not changing the deeply rooted norms of legal education – evidenced by the fact that they remain counter culture.

I want to focus today’s blog on how we make systemic changes in legal education. Because legal education needs a fundamental realignment, not tinkering around the edges. And that requires changing the experience for all – and not just some – students, and the commitment of all – and not just some – faculty.

What does not represent systemic change in legal education

Let’s start by getting clear about the difference between systemic changes in the norms of legal education, and tinkering around the edges. While individually admirable and important, initiatives such as the following fall into the latter category:

I have tried each of these approaches in the last 30 years, some of them many times over.

The capacity of such endeavors to influence the delivery of the broader curriculum, the blissful client-free bubble in which most of the law school floats, and general student knowledge of the realities of legal practice, is minimal.

So if you are presently involved in such projects – please don’t stop. But please be realistic about the impact of your labours. And let me urge you to set your bar higher, and to lobby for real change that affects how all student learn in law school.

What would systemic change require?

I believe that the systemic change we need in legal education requires us to accept four propositions:

  1. Law school in North America is for students who want to be lawyers

True, some will decide a legal career is not for them during the course of those three years.

Others will find a creative way to utilize their legal knowledge in the service of another profession.

But the reason that the vast majority of law students take out huge loans in order to go to law school is to practice law. It is the obligation of law schools to honor that, or to explain to students in their marketing materials that the law school has a different vision for what is good for them to learn in those three costly years.

For those who believe that accepting this will mean the intellectual dilution of legal education with a trade school mentality, I would say – this is an unsustainable dichotomy. Legal education is inevitably a complex mix of theory and practice, and all theory is not an acceptable training model.

  1. Legal education should equip lawyers to work in the public interest

This is the “bargain of self-regulation” – “to maintain the privilege of self-governance, the public interest must always be of paramount concern to the Law Society(ies)”.

This means that law schools should offer instruction by full-time faculty in the areas of law that are important to ordinary Canadians. Subjects such as family law, real estate/ residential tenancies, wills and estates, and criminal law – and to a somewhat lesser extent employment law and human rights – are their most common points of contact with the legal system. Law schools need to demonstrate that the importance of areas of law that touch the public directly and often, by appointing dedicated and experienced faculty to teach these topics, full-time teachers (rather than adjuncts) who can show leadership in addressing the public’s need for legal services in these areas, and identifying changing practice norms.

Accepting this proposition also means that law school must tackle exactly how legal services can be provided to ordinary Canadians – including but not limited to corporations and businesses. This means weaving into every course a discussion of ways to structure legal services to make them financially and practically accessible; working through a menu of common tasks undertaken in that practice area; and considering how to expand access and enhance service.

  1. The primary mission of law schools in Canada is teaching, and the secondary mission is research

The reverse assumption is messing us up, big time.

It is turning areas of promise that espouse Access to Justice issues into abstract, unusable theory courses.

The first obligation of law school faculty is to teach. Of course (!) I believe that research is important – but it cannot be allowed to overwhelm the provision of a practical, relevant, foundational legal education taught in a way that enables new law graduates to experience something other than rigor mortis the first time they meet with a client, or attend on a motion or a judicial settlement conference.

Some law schools may protest that faculty members are unwilling, or unable, to teach their area in a practice context.

Unwilling? See the discussion below about faculty recruitment.

Unable? We are not talking rocket science here. It is perfectly possible to teach simple, basic tasks and the skills required to complete them – drafting a claim, a contract, interviewing a client – as well as describe a variety of financial delivery models – without an extensive practice background. The key is recognizing the ability to translate knowledge into a practical context in the classroom as a critical qualification for new faculty.

Other professional schools including business, engineering and health (nursing and medicine) are light-years ahead of law schools in recognizing this necessity and in the use of class-based experiential learning models (look for a future blog by NSRLP Research Assistant Gurleen Gill who has been through both systems and who will compare her medical training with her legal education).

In hiring new faculty, a critical factor should be willingness to commit to teaching, and to teaching in a practical context. Next time there is faculty recruitment in your law school, consider placing candidates’ pedagogic skills and interests – in teaching their specialist subject (plus at least one of the core subjects that are most significant for providing public legal services) in a practical as well as an intellectual framework – front and centre in hiring criteria.

  1. Emphasizing teaching information over principles and application is a waste of student time and money

Even before the Internet (if anyone can remember that), the amount of time we spent in law school pumping information into student heads was ridiculous. By the time I graduated law school, at least 50% of what I had memorized in labour law the year before was obsolete (her name was Margaret Thatcher and she didn’t like trade unions). The World Wide Web makes the teaching of a stored repository of information even more pointless.

Most law students will tell you that they cram for two or three weeks before the exam because that is all it takes to pass. It’s remarkably unchallenging. Let me breach a final protocol here and say the unsayable – legal knowledge is just like any other form of knowledge. Its not “special” any more than anatomy or physics or literature. Its informational knowledge base is a system like any other system of knowledge.

Learning the basic principles of a core subject does not need to take 10 weeks of teaching if we can drop our compulsion to cover topics by including enormous numbers of appellate decisions. Instead what law students need to learn is how to identify and locate up-to-date information, not how to memorize the status quo – the rest of their time would be much better spent learning how to analyze pertinent information and apply it in practice.

What would systemic change look like?

If we adopted these 4 propositions, we would do the following:

  1. Provide supportive orientation and training to new faculty so that they could learn how to teach (and value learning how to teach).
  2. Equip all law professors to include in their courses: (i) the context of legal practice in the area they are teaching (settlements versus trials, working with clients, self-represented litigants, etc) (ii) basic information about possible financial delivery models and (iii) student exposure to simple and relevant practice tasks such as drafting, advocacy, client interviewing.
  3. Encourage and support professors to significantly limit the amount of class time spent teaching information, and refocus teaching and learning on principles and application.

Proposals 1-3 will likely be met with cries of academic freedom.  We have long accepted a culture in law school in North America where teachers are unaccountable and teaching is largely (easily fillable paperwork aside) unmonitored. But asking professors to be accountable for teaching in a way that is relevant and practical is not a breach of academic freedom (which is about protecting those with unpopular or marginalized perspectives) – it is about requiring them to step up to their basic responsibilities to their students and to the public interest.

  1. Bring the work of the law school clinics – which have co-existed alongside the “serious, intellectual” curriculum for 40 years – into the law school. Connect students in all classes to (simulated or live) clients and client service challenges, and to practical ways to deliver those services to the majority of the public that cannot afford full legal representation. This is more feasible than establishing clinical opportunities for every student (although that would be terrific) and is critical to making the clinics and other experiential programs mainstream, not marginal.
  2. Regularly survey both students and employers about the skills and knowledge they believe should be taught and learned in law school and respond to this (my office is filled with excellent reports from both the US and Canada on how law school can do a better job of training future lawyers; these reports have largely gone ignored).
  3. Incorporate a pervasive ethical framework throughout all law school classes that questions students about what choices they would make, and why, when faced with common ethical dilemmas arising in that practice context.
  4. Develop assessment models that provide formative feedback, and ultimately evaluate students on application, practical skills and ethical sensibilities, as well as knowledge. Our continued reliance on three-hour examinations is an embarrassment. This unfairly privileges good test-takers and is a wholly inadequate measure of a student’s ability to provide any legal services in the area – aside from those that rely on recall under stress…

This is not an exhaustive list. But it’s a start. Please add your ideas and comments.

Legal education is currently failing both law students and the public interest. Yet our law schools are filled with talented and dedicated faculty and students. Changing the norms is a serious, complex, long-term endeavor – but it is long overdue.

Let’s talk.

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Comments (7)

  • Barb Kueber Reply

    What a terrific idea, marrying actual clients with students, I love it!

    How better to teach and evaluate how your students deal with real problems, and real people?

    With the law schools working cooperatively with groups like ProBono, we could expect even brighter, and more confident graduates from them and they be more ready to pursue their individual goals, the side-effect, some of our most challenged would have an opportunity to access justice.

    Fantastic ideas, when do we start?

    March 6, 2017 at 12:17 pm
  • NSRLP Reply

    Our apologies for any glitches with commenting on the website at this time – we are experiencing some technical difficulties.

    March 6, 2017 at 4:55 pm
  • Jason Lisburn Reply

    Isn’t the fundamental disconnect this:
    As citizens, ignorance of the law is no excuse; yet the government mandated education curriculum doesn’t allow for the study of the law.
    Hence, upon reaching the age of majority (and even before); we are expected to abide by rules we have never been taught – unless that is we attend law school (at great expense as highlighted) and even then you are unlikely to have completed law school by the time you reach the age of majority.
    So we have a situation whereby society is governed by rules only a select few are trained in – a set up similar to a a cult or secret society; the necessary knowledge required to understand reality is confined to select (usually wealthy) few and knowledge of it is not advanced until you are already subservient to it.

    I can’t think of a better way of keeping power and denying it to the majority of others, than to design a system that is generally incomprehensible to the layman and has locked him in before he is able to comprehend it. Let’s be clear here, it’s a deliberately unaddressed systemic fault, it having been clearly addressed in the introduction of the 2nd Edition of the Common Law Procedure Act in 1870? (yes, nearly 150 years ago, since this country was founded).

    “All men are supposed to understand the law. Ignorance of is is sometimes punished as a crime, and often followed by pecuniary losses. But with two legislatures annually at work, and the annual product a multitude of statutes, some amending, some repealing, some explaining and some consolidating existing statutes on all conceivable subjects, there is necessarily so much confusion as to render it very difficult even for men trained in the law as a profession so to follow the law through all its changes as to understand it in all it’s bearings.”

    Sounds like a recipe for disaster to keep compounding the issue with more laws and further reduce the members of society’s ability to understand; yet it continues, making it clearer and clearer this is by design, not by accident.

    March 7, 2017 at 12:00 pm
  • sandra olson Reply

    and once again, the main disconnect between the self represented and the courts, is their contempt for us, and their complete unwillingness to hear us. now,, see if you can change that!

    March 8, 2017 at 1:44 pm
  • Ken Chasse Reply

    Conclusion: the problem as to the conflict between academic and clinical training is much more complicated than your article represents it to be.
    1. All that your 2-part article requires of law professors would need a 4th year be added to law school training. How to be pay for that?
    2. Law school must emphasize the teaching of law as well as scholarship. If at all, begin clinical training in a 4th year of law school. Like the 4th year of medical school, it should be the beginning of specialization. I am not an academic. I am a practicing lawyer of 51 years experience, the first 40 years of which was spent as a criminal lawyer, and since then I’ve been involved with the technology of electronically-produced evidence..
    3. As laws become completely based upon technology, so do the sources of evidence for legal proceedings. But our legal education and CPD/CLE programs don’t provide sufficient technical information with which to challenge the reliability of such sources. ( Because there are no laws requiring otherwise, software has high error rates and bad electronic records management is very common.) And parties can’t afford to pay for the necessary expert advice needed for competent cross-examinations and expert witnesses. A specialist legal career-oriented legal research lawyer is necessary for each major area of law, who is expected to know about such technology. And there are several other specialist lawyers needed to be created. But law societies would have to create the support services so that they would be available to all lawyers and not just to those having rich clients. That’s another reason why a 4th year to provide the beginning of specialization is necessary. But law society benchers are still 19th century part-time amateurs. Therefore they don’t consider such needs.
    4. The NSRL Project, alternative legal services, and student clinical programs, (and law professors) should analyze the cause of the unaffordable legal services problem, as well as living off its continued existence and volume. There is still no understanding of its cause even though it has existed for many years, and has been noticeable in its development to law society benchers for many years before that.
    5. All such persons, law professors, Projects, and benchers, must resolve the conflict of interest between working to solve the problem of unaffordable legal services, and what is perceived to be best for their careers. There is no project to learn the cause because of the unwillingness of benchers to try to solve the problem, because such attempts would interfere with the time needed to be practicing lawyers. So they respond to the only source of pressure upon them, which is where they earn their living. But attacking one’s law society is not considered to be helpful to one’s career, or Project, or law school employer.
    6. Alternative legal services (ALSs) and student clinics will always be necessary, but they are simplistic solutions in a world of very rapidly increasing volumes, complexity, and technology-based laws, as well as exploding volumes of relevant records due to electronic technology–records are now the most frequently used kind of evidence. ALSs are charity, which is an insult to the public that pays for the justice system whereat all lawyers, directly or indirectly, earn a living that is better than those taxpayers. But the profession can’t give them an affordable lawyer. (Routine legal services are still affordable, but not legal advice services that take any significant amount of a lawyer’s time.) ALSs help the public learn to live with the problem, but don’t try to solve it, i.e., palliative care instead of trying to cure the disease. And ALSs don’t provide legal services within a solicitor-client fiduciary duty relationship, and backed-up by a law society complaints department, and every lawyer’s professional insurance (pro bono being but a very tiny exception for simple, short cases). And the strategy of ALSs and student clinical training programs is to cut the costs of legal services by cutting the competence of the people who provide them. But in the medical profession, and in all of the competitive manufacturing of services as well as goods, the strategy is the opposite–cut costs by increasing the competence of all major factors of production by increasing the volume of production. Nothing is as effective at cutting the costs of production as scaling-up the volume of production. “Bigger is better.” No law firm has a sufficient volume of production. (The big law firms are made up a little law firms called “practice groups.” Therefore the same economic realities apply to all law firms.)
    7. The commercial production of legal services by such companies as, LegalX and Legal Zoom, will emphasize affordability and maximizing the use of technology’s rapid progress from facilitating the production of routine legal services to facilitating legal advice services. Thus, they will cause the disappearance of the general practitioner, and reduce the number of lawyers in private practice. Statistics show that to be happening now. But LegalX’s and LegalZoom’s services are provided in a buyer-seller relationship; not in a solicitor-client relationship with all the law society back-up and oversight that goes with it. What are law societies, law schools, the NSRLP, clinical training for law students, and ALSs doing about that?
    8. Therefore, far more ethical it is to solve the problem of unaffordable legal services than it is to let it grow while sacrificing the needs of the majority of the population for affordable legal services provided by lawyers, to students’ clinical training and self-help programs.
    See: “Access to Justice—Unaffordable Legal Services’ Concepts and Solutions”; at:
    http://ssrn.com/abstract=2811627 .

    March 9, 2017 at 8:10 am
  • Ken Chasse Reply

    I see that my comment was removed, why?
    Comment:

    Conclusion: the problem as to the conflict between academic and clinical training is much more complicated than your article represents it to be.
    1. All that your 2-part article requires of law professors would need a 4th year be added to law school training. How to be pay for that?
    2. Law school must emphasize the teaching of law as well as scholarship. If at all, begin clinical training in a 4th year of law school. Like the 4th year of medical school, it should be the beginning of specialization. I am not an academic. I am a practicing lawyer of 51 years experience, the first 40 years of which was spent as a criminal lawyer, and since then I’ve been involved with the technology of electronically-produced evidence..
    3. As laws become completely based upon technology, so do the sources of evidence for legal proceedings. But our legal education and CPD/CLE programs don’t provide sufficient technical information with which to challenge the reliability of such sources. ( Because there are no laws requiring otherwise, software has high error rates and bad electronic records management is very common.) And parties can’t afford to pay for the necessary expert advice needed for competent cross-examinations and expert witnesses. A specialist legal career-oriented legal research lawyer is necessary for each major area of law, who is expected to know about such technology. And there are several other specialist lawyers needed to be created. But law societies would have to create the support services so that they would be available to all lawyers and not just to those having rich clients. That’s another reason why a 4th year to provide the beginning of specialization is necessary. But law society benchers are still 19th century part-time amateurs. Therefore they don’t consider such needs.
    4. The NSRL Project, alternative legal services, and student clinical programs, (and law professors) should analyze the cause of the unaffordable legal services problem, as well as living off its continued existence and volume. There is still no understanding of its cause even though it has existed for many years, and has been noticeable in its development to law society benchers for many years before that.
    5. All such persons, law professors, Projects, and benchers, must resolve the conflict of interest between working to solve the problem of unaffordable legal services, and what is perceived to be best for their careers. There is no project to learn the cause because of the unwillingness of benchers to try to solve the problem, because such attempts would interfere with the time needed to be practicing lawyers. So they respond to the only source of pressure upon them, which is where they earn their living. But attacking one’s law society is not considered to be helpful to one’s career, or Project, or law school employer.
    6. Alternative legal services (ALSs) and student clinics will always be necessary, but they are simplistic solutions in a world of very rapidly increasing volumes, complexity, and technology-based laws, as well as exploding volumes of relevant records due to electronic technology–records are now the most frequently used kind of evidence. ALSs are charity, which is an insult to the public that pays for the justice system whereat all lawyers, directly or indirectly, earn a living that is better than those taxpayers. But the profession can’t give them an affordable lawyer. (Routine legal services are still affordable, but not legal advice services that take any significant amount of a lawyer’s time.) ALSs help the public learn to live with the problem, but don’t try to solve it, i.e., palliative care instead of trying to cure the disease. And ALSs don’t provide legal services within a solicitor-client fiduciary duty relationship, and backed-up by a law society complaints department, and every lawyer’s professional insurance (pro bono being but a very tiny exception for simple, short cases). And the strategy of ALSs and student clinical training programs is to cut the costs of legal services by cutting the competence of the people who provide them. But in the medical profession, and in all of the competitive manufacturing of services as well as goods, the strategy is the opposite–cut costs by increasing the competence of all major factors of production by increasing the volume of production. Nothing is as effective at cutting the costs of production as scaling-up the volume of production. “Bigger is better.” No law firm has a sufficient volume of production. (The big law firms are made up of little law firms called “practice groups.” Therefore the same economic realities apply to all law firms.)
    7. The commercial, competitive production of legal services by such companies as, LegalX, Legal Zoom, Rocket Lawyer, etc., will emphasize affordability and maximizing the use of technology’s rapid progress from facilitating the production of routine legal services to facilitating legal advice services. Thus, like the shoemaker’s shop, they will cause the disappearance of the general practitioner (the most numerous kind of lawyer by far), and reduce the number of lawyers in private practice. Statistics show that to be happening now. But LegalX’s, LegalZoom’s, etc., services are provided in a buyer-seller relationship; not in a solicitor-client relationship with all the law society back-up and oversight that goes with it. What are law societies, law schools, the NSRLP, clinical training for law students, and ALSs doing about that?
    8. Therefore, far more ethical it is to solve the problem of unaffordable legal services than it is to let it grow while sacrificing the needs of the majority of the population for affordable legal services provided by lawyers, to students’ clinical training and self-help programs. The law requires that legal services be kept adequately available first (which includes their affordability, and law students’ clinical as well as academic training be no better than second.
    See: “Access to Justice—Unaffordable Legal Services’ Concepts and Solutions”; at:
    http://ssrn.com/abstract=2811627 .————————————-o——————————-

    March 9, 2017 at 9:53 pm
    • NSRLP Reply

      Hello Ken, I’m sorry, your comment was not removed, it was approved, and now I see it is not showing up on the front end. We’ve had this issue recently with other comments, and are working on it. The website will be down for a while this weekend while we make some upgrades, and hopefully the problem will be fully resolved once we’re back up and running. Apologies for the frustration.

      March 10, 2017 at 11:24 am

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