The Ryerson Symposium Ryerson University Professor David F. Chavkin Washington College of Law...

The Ryerson SymposiumRyerson University

Professor David F. ChavkinWashington College of LawAmerican University

Professor David F. ChavkinWashington College of LawAmerican University

Teach First Year courses like Teach First Year courses like Civil Procedure and in our Civil Procedure and in our Integrated CurriculumIntegrated Curriculum

Teach Upper-Level courses Teach Upper-Level courses like Health Law and like Health Law and Professional ResponsibilityProfessional Responsibility

Direct the General Practice Direct the General Practice ClinicClinic

The General Practice Clinic is the The General Practice Clinic is the largest clinic in the United States largest clinic in the United States with 90-100 students per year.with 90-100 students per year.

Students represent low-income Students represent low-income clients with a wide range of legal clients with a wide range of legal problems.problems.

Students are the attorneys for Students are the attorneys for clients under student practice clients under student practice rules.rules.

Five lessons (from the southern suburbs of Toronto, Montreal and Vancouver)1.Teaching students to

think like a lawyer is not enough

Five lessons from the southern suburbs of Toronto, Montreal and Vancouver2. We are doing great

damage to our students starting in the first year

Five lessons from the southern suburbs of Toronto, Montreal and Vancouver3. Law school needs to be

taught in a more integrated manner

Five lessons from the southern suburbs of Toronto, Montreal and Vancouver4. Experiential learning is

critical in teaching adults – in moving from pedagogy to andragogy

Five lessons from the southern suburbs of Toronto, Montreal and Vancouver5. We need to

acknowledge the global nature of legal practice

Father Guido Sarducci

“[T]he primary purpose of law school is . . . to teach students to think like lawyers.”

The face of American legal education has been the face of Christopher Columbus Langdell Large classes Socratic

method Case analysis Good

financially for law schools

It has been the face of Christopher Columbus Langdell

The goal was to teach students “to think like a lawyer”

What is wrong with that model?

It works poorly for certain groups Minorities Women

But, the biggest problem is that no one has ever shown that it works effectively for white men.

What is wrong with that model?

It does a lot of damage along the way.

What is wrong with that model?

And, teaching someone to “think like a lawyer” is not the same as teaching someone to “be a lawyer”

The D’Alemberte critique of traditional legal education

Former President of the American Bar Association (1991-92).

Former Chair of the ABA Section of Legal Education and Admission to the Bar (1982-83). 

The D’Alemberte critique of traditional legal education

Former Dean, Florida State University College of Law

Former President, Florida State University.

The D’Alemberte critique of traditional legal education

"Law students are being told by law professors that 'We don't teach you to be a lawyer, but to think like a lawyer', said D'Alemberte, launching in before his progressively more uneasy audience.

The D’Alemberte critique of traditional legal education

“'Isn't that a damn strange statement?' D'Alemberte continued. 'What would you say to . . . educators in other fields if they said, 'We don't teach you to be a musician, actor, historian, physicist – but only to think like one?'"

What/who brought about the current changes in American legal education?

Bob MacCrate Senior Counsel, Sullivan and Cromwell

Former President, American Bar Association

MacCrate Report - 1992 ABA Task Force on Law

Schools and the Profession: Narrowing the Gap

Recommended the teaching of lawyering skills and professional values in law schools to enhance professional development

The MacCrate The MacCrate

ReportReport

ABA Accreditation Standard 301(a)(circa 1993)

“(a) A law school shall maintain an educational program that prepares its students for admission to the bar.”

MacCrate Report Recommendations

Teaching should develop the concepts and theories underlying the skills and values being taught

There should be an opportunity for students to perform lawyering tasks with appropriate feedback and self-evaluation

There should be reflective evaluation of the student’s performance by a qualified assessor

C. Enhancing Professional Development During the Law School Years

2. Standard 301(a) regarding a law school's educational program should be amended to clarify its reference to qualifying "graduates for admission to the bar" by adding: ". . . and to prepare them to participate effectively in the legal profession."

C. Enhancing Professional Development During the Law School Years

This would affirm that education in lawyering skills and professional values is central to the mission of law schools and recognize the current stature of skills and values instruction. (Chapter 7.C and Chapter 7.B)

ABA House of Delegates Resolution - 1994

“Methods [clinical legal education] have been developing for teaching law students skills previously considered learnable only through post-graduation experience in practice.”

The accreditation standards This recognition by the House of

Delegates would find form in concrete changes in the accreditation standards that govern law schools in the United States.

American Bar Association accreditation of law schools

As of October 2008, a total of 200 institutions were approved by the American Bar Association.

Graduation from an ABA-accredited school is usually required in order for students to take the bar examination.

ABA Accreditation Standard 301(a)

(a) A law school shall maintain an educational program that prepares its students for admission to the bar and effective and responsible participation in the legal profession.

Standard 302. CURRICULUM. “(a) A law school shall require

that each student receive substantial instruction in: . . . (4) . . . professional skills generally regarded as necessary for effective and responsible participation in the legal profession . . . .”

substantial opportunities for instruction in

professional skills

Standard 302(b). A law school shall offer substantial opportunities for:

(1) live-client or other real-life practice experiences, appropriately supervised and designed to encourage reflection by students on their experiences and on the values and responsibilities of the legal profession, and the development of one's ability to assess his or her performance and level of competence;

live-clientlive-client appropriately supervised

appropriately supervised

encouragereflection

encouragereflection

How do we get there?

Clearly, not through the Socratic method!

Payne v. Cave (1789)

"Mr. Freiberg, will you state the facts in the case of Payne v. Cave?"

“This case deals with an auction for a wormtub. The defendant was the highest bidder, bidding 40 pounds for the tub. But before the auctioneer's hammer came down, the bidder revoked his bid. The next day, they resell it to the same guy, and he buys it for 30 pounds. The seller sues the buyer for the difference between the first bid (40 pounds) and the second bid (30 pounds). If the seller wins, the damages are 10 pounds.”

What is a wormtub (anyway)?

What changes do we want to create in our students?

Goals of Legal Education

We want to produce lawyers with the skills to be effective.

We want to produce lawyers with the values to be responsible.

Why shouldn’t we leave the teaching of skills and values to post-graduation work/apprenticeships/articles? 1. Law schools are committed to

the education of students above other interests.

2. Law schools employ individuals skilled in teaching.

3. Law schools employ teachers who are good role models.

quality alternative to articles

The Carnegie Foundation Report (2007)

“Law school should be seen ‘as

apprenticeship to the profession of

law.’"

“The first apprenticeship, . . . intellectual

or cognitive, focuses the student on the

knowledge and way of thinking of the

profession.”

The three apprenticeships of legal education

“The second . . . apprenticeship is to the

forms of expert practice shared by

competent practitioners.”

The three apprenticeships of legal education

“The third apprenticeship, . . . identity and

purpose, introduces students to the

purposes and attitudes that are guided by

the values for which the professional

community is responsible.”

The three apprenticeships of legal education

“The potential of clinical-legal education for bringing together the multiple aspects of legal knowledge, skill, and purpose has long been noted.”

First, do no harm

We should respect our own Hippocratic oath (to first do no harm) and we should acknowledge the tremendous harm that we do to law students in law school.

Depression among law students and lawyers

10%

32%

40%

17.90% 19%

9% 9% 9% 9% 9%

0%5%

10%15%20%25%30%35%40%45%

PreLaw 1st Year 3rd Year 2 YrsPostGrad

0-78 Yrs ofPractice

Lawyers General Population Maximum

Psychological Distress(Source: Beck 1995-96)

18%

30%

21%

7%10%

27%

16%

11%

0%

5%

10%

15%

20%

25%

30%

Male Lawyers Female Lawyers GeneralPopulation

Global Distress AnxietyDepression Paranoid IdeationInterpersonal Sensitivity Social Isolation & AlienationObsessive-Compulsiveness Hostility

2.27%

Clients do not enter a law office with the nature of their legal problem stamped on their forehead! TortsContracts

Revisions to the first year curriculum

Integration of first-year curriculum to show connections between what were distinct courses

Andragogy, not pedagogy Pedagogy refers to the art and science of educating children.

Andragogy refers to the art and science of helping adults learn.

Adults learn differently from children

We should be basing our instruction on principles of andragogy, not pedagogy.

Adults learn differently from children

Adults learn best through discovery learning, through grappling with ambiguous problems in which they can own their experience and draw theory from practice.

Confucius (551-479 BCE)

I hear and I forget.

I see and I remember.

I do and I understand.

Aristotle “Nicomachean Ethics” Book 2 Ch. 1, 350 B.C. “Moral virtue

comes about as a result of habit. . . . For the things we have to learn before we can do them, we learn by doing them.”

The Correspondence of Justice Oliver Wendell Holmes and Sir Frederick Pollock (1926)

“We learn how to behave as lawyers, soldiers, merchants, or what not by being them. Life, not the parson, teaches conduct.”

David Kolb Definition of Learning “Learning is the process

whereby knowledge is created through the transformation of experience.”

The “Best Practices” Report (2007)

“While law schools help students

acquire some of the essential skills and

knowledge required for law practice,

most law schools are not committed to

preparing students for practice.”

“Law schools should help students acquire

the attributes of effective, responsible

lawyers including self-reflection and lifelong

learning skills, intellectual and analytical

skills, core knowledge and understanding of

law, professional skills, and

professionalism.”

“Optimal learning from experience involves

a continuous, circular four-stage sequence

of experience, reflection, theory, and

application.”

Experiential learning model of Kurt Lewin as described by David Kolb (1984)

We often diminish the importance of experiential learning by using it interchangeably with the term “skills training” The term “skills” training ignores

the (greater) importance of “values” training.

Even within the term “experiential learning,” not all experiences are equally valuable to adult learning.

4 GEORGETOWN JOURNAL OF LEGAL ETHICS 537 (1991)

Expansion of experiential learning Integration of experiential

components in substantive courses

Integration of drafting and simulation exercises into existing courses

Expansion of clinical opportunities

Globalization of the curriculum

Expansion of international law courses in the upper-level curriculum

Integration of international law issues into existing courses (intellectual property, health law, criminal law)

Globalization of the curriculum

Creation of partnerships with other institutions

Expansion of summer programs