How would you improve the teaching of law and legal practice. in Australia or New Zealand? Jessie Ingle

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1 How would you improve the teaching of law and legal practice in Australia or New Zealand? Jessie Ingle Every single time I tell someone I m a soon-to-be lawyer, I am without fail confronted with the question, So, you re like Mike Ross from Suits? Or Elle Woods from Legally Blonde? I hasten to correct them and retort that the reality of law and law school is utterly different from the Hollywood creation pervading our television screens every night. But then I stop to wonder, does it have to be? Society is fascinated by the law it is one of the most prominently represented professions on television and in movies the medical profession aside, I struggle to think of any gripping cliff-hanging TV dramas about accountants or other established professions. Yet what students are confronted with at law school is far removed from the idea of law that popular culture has shaped in their minds. Whilst I am by no means claiming that the practice of law bears any possible resemblance to any representation of law in popular culture (although binge-watching the acclaimed BBC series Silk was incredibly beneficial though accidental study for my Evidence exam), legal dramas do in fact capture the essence of the legal profession as well as the attention of students. The teaching of law and legal practice in Australia and New Zealand could take several cues in this regard from Hollywood. Every legal drama episode contains some element of an ethical dilemma, some potential breach of the duty of care towards the client, the court, the public. Every episode concludes in the lawyer winning the case through some trick of logic, some exercise of critical thinking that the other side failed to see. There are communication failures, office politics, strains upon relationships. Whilst rarely presenting the letter of the law itself, legal dramas manage to concentrate on the issues central to the profession ethics, critical thinking, and communication. These primary issues are at the heart of what makes a good lawyer, and what the teaching of law and law practice should focus upon. Law is one of the oldest and most established professions; to continue the legacy of the profession, an education in the law should always have at its forefront the question how do I become a competent lawyer? The 1992 McCrate Report on legal education found that the time spent on formal legal education is but a fraction of the time a lawyer will spend developing their abilities to practice as a competent member of the profession. 1 1 Gary Blasi, Teaching/Lawyering as an Intellectual Project (1996) 14(1) Journal of Professional Legal Education 65, 66. 1

2 The report referred to the continuum of legal education the notion that law school is focused on formal education, college of law or bar school on practical skills, and the legal career on the continuing development of what it is that makes a competent lawyer. 2 Formal education at law school loses sight of this continuum and the question of how to become a competent lawyer. It focuses on bell curves and rote learning, with little attention paid to the skills and characteristics an effective lawyer needs. There is an inverted emphasis on formal legal education compared to the skills that are actually used by a competent practising. Such a misplaced ratio leads to a stark dissonance between legal education and the practice of law. Law schools often leave out skill-development and professional responsibility education as they see it as the purview of the College of Law. However, this view fails to recognise that legal education is a continuum with a currently misplaced ratio. The McCrate Report emphasised institutional cooperation to reflect the reality that education is a lifelong process. 3 Whilst it is certainly important to learn black-letter law at university, and combine the practice of law with a strong knowledge of the law itself, the misplaced emphasis on formal legal education is also a by-product of historical accident, and not a feature that is necessarily entrenched. Australian universities offer large lecture courses that drone on in detail about each section of the Corporations Act 2001 (Cth) because that is how they are resourced to operate. US law schools teach in the Socratic method because it is what Harvard Law School historically did. 4 At the same time that there is a continuum of legal education, there must also be an evolution of legal education. Law is notoriously slow to adapt, however, legal education provides a unique space for innovation. In the limited legal experience I have gained, I have noted that the problems I have faced fall into three categories legal ethics, logic, and communication. These elements are at the heart of every legal TV episode, and while not so melodramatic at the heart of the practice of law. Legal education must focus less on the memorisation of the Corporations Act and more on 2 Ibid. 3 Eugene Clark, Internationalisation: Its Impact on Undergraduate, Pre-Admission, and Continuing Legal Education (1995) 13(1) Journal of Professional Legal Education 99, Blasi, above n 1, 71. 2

3 the skills that are actually used in the workplace. This will enable the transition from surfacebased, teacher-driven learning to deep, student-driven learning. 5 When faced with 300-page readings of cases decided before the 20 th Century, law struggles to remain relevant in the classroom. Yet we are so captivated with the representations of law in popular culture this is because they highlight the core processes of the profession (while all the time managing not to get one single piece of legal information correct). Law is not essentially tedious. It is not essentially dry, as so many people warned me before I commenced my degree. Legal dramas, while wildly inaccurate, show us that the central elements of law ethics, critical thinking, communication skills are inherently fascinating and crucial. Legal education can isolate these core features of law by moving away from formal education and incorporating more experiential and skills-based learning. Clinics are an excellent way to bridge the gap between formal legal education and the practice of law. 6 In England, the Free Representation Unit provides an opportunity for law students to gain academic credit and real-life experience, as well as provide a benefit to society by giving representation to the impecunious who are ineligible for legal aid. Representing a client develops the communication, problem solving, and ethics skills of a student enormously, and captures their attention much more than pouring over a textbook. Each and every course should have some element that mellows the dissonance between legal education and legal practice thus combating the inverted emphasis the Australian system is faced with. A criminal law class could include work for an equivalent of the Free Representation Unit, an international human rights law class could include work for an individual claim to the UN Human Rights Council. Law students have a remarkable knowledge of black-letter law, yet no knowledge of how to put that into practice, how to conduct a case, how to carry out a transaction. The first thing one learns in law school is the ground-breaking principles of Donoghue v Stevenson, yet no-one learns the ground-breaking methods and processes the plaintiff s lawyers used to win the case. 7 Students are educated to become appeal court judges never experiencing the practicalities of a case, always reading it 5 Beth Campbell, Professional Education, Deep Learning and Dispute Resolution (1997) 15(1) Journal of Professional Legal Education 1, 2. 6 Stephen Nathanson, Bridging the Divide between Traditional and Professional Legal Education (1997) 15(1) Journal of Professional Legal Education 15, Ibid, 22. 3

4 second-hand. In order to maintain a smooth continuum of legal education, the dissonance between school and practice must be bridged. Ethics and professional responsibility are the key issues that capture our attention in legal dramas they are why it is legal and medical dramas that are exponentially the most popular on television we see people grappling with ethical dilemmas that are at the core of our society. The central premise of most legal dramas is some sort of ethical dilemma Mike Ross not having a licence to practice law, Denny Crane being conflicted between a duty to the client and a duty to the court. Yet surveys in the US have shown that ethics courses are perceived to be inferior. 8 I was eager to study ethics at university an eagerness that quickly faded when all we learned was how to memorise the Solicitors Rules. Auerbach stated that litigation expresses a chilling Hobbesian view of human nature, 9 and without having ethics instilled in litigators from the beginning of their education, the Hobbesian state of nature can abound. Ethics is arguably the most important course law students undertake, and the backbone of education at the College of Law, so why it is one of the most reviled subjects? A significant reason for its unpopularity is that it is an essentially practical subject that is taught in a formal way. One cannot truly understand the dilemma that arises from representing two parties at once by reading Solicitors Rule 9 and Bolkiah v KPMG 10 a student has to be personally confronted with the dilemma. Clinics and simulations, as well as other experiential learning techniques, provide safe and effective methods of demonstrating the practical effect of professional responsibility. When it is neither practical nor feasible to include work for institutions outside the university, classes could conduct simulations of real-life events. This has the added bonus of the teacher being able to control the situation and throw in ethical dilemmas that the students have to deal with at several points. Organisations and governments often have to conduct emergency simulations to ensure that they are prepared for all eventualities law students ought to do the same. An important point to note is that ten-minute purpose-driven simulations where the student knows there will be a client- client conflict are of limited use a more effective method is a long-term simulation, as part of a term-long assessment, for 8 Nigel Duncan, Ethical Practice and Clinical Legal Education (2005) 7 International Journal of Clinical Legal Education 7, Auerbach in Duncan, above n 8, [1999] 2 WLR

5 example, where ethical dilemmas are thrown in at random. A key issue of professional responsibility is being able to identify an ethical dilemma when it arises. They will never announce themselves, and may only become apparent when one is too far embroiled. By incorporating ethics into other courses at random, the student is taught to be constantly vigilant. This approach to teaching encourages both the student and the teacher to have the legal education continuum in mind, as well as the question how do I become a competent lawyer?. Moreover, corporate firms consistently describe themselves as full-service firms having the ability to isolate distinct issues from a single complex problem through the experience of experiential learning would be invaluable to this approach. Having an assessment for corporations law that requires a student to take a deal from start to finish throughout semester, dealing with ethical and business issues along the way, is excellent preparation for the realities of the legal world a world that is now crossdisciplinary and where lawyers can no longer be singularly educated in the law. The legal education system can thus be innovative not only for its students, but also for the future legal profession it will create. The Australian Law Reform Commission suggested that if teaching gave more emphasis to dispute resolution and negotiation, it would go a long way to dealing with the perceived problems of the adversarial system as students became lawyers. 11 Suits, Law & Order, Silk, Boston Legal. All gripping, wildly popular legal dramas. All captivating our attention. All speaking to the heart of the legal profession the ethical dilemmas, the communication and relationships. Whilst none of these shows will be appraised for their legal accuracy, they each tap into something that enthralls us, something that is at the root of the law. Yet inevitably when we are asked whether our job is anything like these shows, we instinctively laugh at the idea. There is a distinct dissonance between law school, College of Law, and legal practice. We think of law school as dry, formal education; College of Law (unfortunately) as a three-month blip in the timeline of our education; the practice of law as something unknown until we step into the abyss. TV legal dramas may just have the answer to ameliorate the dissonance within the education continuum a focus on the heart of the legal profession ethics, communication, relationships. If we centre our education on these elements, we cannot only recapture the core of what it is to be a truly competent lawyer, but we can also possibly recapture the attention of our students. For at least a forty minute time-slot. 11 Australian Law Reform Commission, Review of the adversarial system of litigation: Rethinking legal education and training (Report, 1997), 9. 5