Click here for Special Report I, here for Special Report II, here for Report III, here for Report IV, here for Report VI and here for the Final Report.
It continued to be another interesting conference, and it started when passengers left the metro (i.e. subway) to get to the Conference Centre. There was this man holding up a white card with writings on it, pointing to it in an attempt to get our attention and shouting that the Czech Republic is still a communist state. I then stopped and spoke to him and tried to understand his arguments, and it does not appear as loony as one would imagine — he explained how after communism fell, it still haunts the country by being implemented in the guise of capitalist policies. I asked if I could take photographs of him and he was happy to oblige. He then went on to explain his websites and encouraged me to visit the same; it appears that he has theories, which I could not really understand, about hedonism, pleasure and sex, see www.drive.to/pleasure and www.czechpoint.tripod.com.
I spent the whole day at this session and it was fruitful. The term “clinical legal education” denotes a certain methodology of teaching law to law students which does not rely on the usual rote learning we all went through. It is done by the students actually handling case files, advising clients, writing opinions and submissions for court and doing limited court work. There is a growing number of these “clinics” in universities such as in Northumbria University, Newcastle, England headed by Philip Plowden and in the University of KwaZulu-Natal, Durban, South Africa headed by David McQuoid-Mason. Law students who undertake law at these universities are taught through the use of these clinics and are assessed on it for their degrees in law.
It is best expressed in the following quote by A. Amsterdam in “Clinical Legal Education — A 21st Century Perspective” at (1984) 34 Journal of Legal Education 612:
“Toward the end of the twentieth century, techniques of legal education became widespread which were designed precisely to teach students how to learn systematically from experience, and simultaneously to educate them in a broader range of legal analyses and skills than had theretofore been taught in law schools.
This development was called “clinical legal education”. It took numerous forms, but the basic technique were this:
- Students were confronted with problem situations of the sort that lawyers encounter in practice. The situations might be simulated — role-playing exercises in which some students played the role of legal counsellors and others played the role of clients, for example — or they might be real; students might be assigned to represent actual clients and to counsel those clients under the close supervision of clinical faculty members, for example.
- The problem situations were: (a) concrete, that is, textured by specific factual detail; (b) complex, that is, they required the consideration of interacting factors in a number of dimensions — legal, practical, institutional, personal; and (c) unrefined, that is, they were not predigested for the student through the medium of appellate opinions or course books, but were unstructured, requiring the student to identify “the problem[s]” or “the issue[s].”
- The students dealt with the problem in role. They bore the responsibility for decision and action to solve the problem. They had to: (a) identify the problem; (b) analyse it; (c) consider, formulate, and evaluate possible responses to it; (d) plan a course of action; and (e) execute that course of action. In all of these activities, the students were required to interact with other people. They were thus required to work through the relationships between legal analysis, communication, and interpersonal dynamics.
- The students’ performance was subjected to intensive and rigorous post mortem critical review. With faculty and other students, the performing students sat down, re-created, and criticised every step of their planning decision making, and action. Sometimes this was done by replaying videotapes or audiotapes of their performance, sometimes by reviewing notes and memoranda that they had made during the performance stage, often by both. The students’ own thinking and behaviour in role were thus made the central subject of study, just as, in a traditional classroom course, a judicial opinion or a statute would have been the subject of study.
- This critical review focused upon the development of models of analysis for understanding past experience and for predicting and planning future conduct. It identified and explored the questions to be asked following any experience — a meeting with a client, a negotiation with another lawyer, a conference with a government official, a trial, the closure of a case — in order to draw from that experience the maximum of learning it can provide. The students learned to ask, for example: “What were my objectives in that performance? How did I define them? Might I have defined them differently? Why did I define them as I did? What were the means available to me to achieve my objectives? Did I consider the full range of them? If not, why not? What modes of thinking would have broadened my options? How did 1 expect other people to behave? How did they behave? Might I have anticipated their behaviour — their goals, their needs, their expectations, their reactions to me — more accurately than I did? What clues to these things did I overlook, and why did I overlook them? Through what kind of thinking, analysis, planning, perceptivity, might I see them better next time?” These questions are, of course, the points of entry to examination of the kinds of reasoning I have mentioned — ends-means thinking, contingency planning, and the rest. They are also the beginning of the students’ development of conscious, rigorous self-evaluative methodologies for learning from experience — the kind of learning that makes law school the beginning, not the end, of a lawyer’s legal education.”
The session was small and we had an interactive discussion which bore out what clinical legal education (or in short, clinic) is and how clinic can impact education and benefit the community. We were asked to consider these questions:
1. How do lawyers spend their time?
— listen
— advise
— write
— negotiate
— advocate
2. How could they do more of it?
3. When do they do it well?
4. How does anyone know?
5. Is law a moral, political or civil profession?
We then discussed the need for a legal education model which prepared students upon completing their law degrees to immediately assimilate themselves without further training into the legal industry. Law school should be seen as the “beginning and not the end”. Clinical legal education may be illustrated as a “doctor attending a the bed-side of a sick person” because law is a “dispensary service”. Lawyers dispense advice and representation to clients as part of their job. Clinic therefore takes the “pharmaceutical into the medical industry” to the legal profession.
The common teaching methods of law in universities are being challenged as ill-equipped because it mainly focuses on remembering case laws and judgments which are then reproduced in examinations, but students do not understand how it applies in the real world. Legal education now emphasizes merit by memory, and not by personal experience. A person may remember but not understand, and knowledge is most effective when it is experienced by the acquirer of that knowledge. One learns best when “it happens to the person”. Clinic therefore takes the “interpersonal approach and experiential learning” as an academic exercise in itself. Educators cannot be seen to be in the “business of education”, rather as “community service” because education is in itself a good.
For example, before engineers can be certified or doctors can practise, their industries demand that the engineers are able to correctly measure and construct a safe bridge while doctors are able to hold an scalpel to tend to a sick person.
The debate has shifted; and it is no longer the academic versus the clinical argument anymore. The question is how does one emphasise the latter without compromising the former as both are equally necessary. There is nevertheless a school of thought which argues that clinic is the only way of legal education.
Historically, and thus far, successful lawyers have been able to get by owing to the traditional methods of legal education – they learn to write, remember and speak well. There is therefore no apparent impetus to change things the way they are. But employers and recruiters are now beginning to realise that in a competitive market, more skills are required to fulfil the demands of society and the market on the legal profession. Lawyers now have to be marketers, business strategists and service providers to the needy. Clinic is more effective in educating students in these areas.
There are variant models of clinic where a combination of the following features exist:
1. Observation — eg: observing the legal process in the courts.
2. Simulation — eg: development of exercises and assessments to simulate what the practice of law is about in the real world.
3. Participation — requiring students to “do time” in the legal environment.
4. Placements — similar to 3. above where students work for short periods with legal firms.
5. Clinics — a formal structure incorporating all the above and the ideal education tool.
The benefits of clinic are summarised as follows:
1. “Based on the constructive theory of legal education, we do it because it works.”
2. It exposes law students to different ethical and moral considerations in the practice of law, and the varying nature of clients who seek advice which includes situations which could never be simulated or envisaged in the textbooks.
3. It provides a means of community legal education, increased legal literacy and empowers societies. Some clinics link with external agencies such as NGOs and students learn to appreciate the law in action within the context of humanity.
There are also different models of clinic:
1. “Full-scale clinic” where clients come in everyday seeking advice and assistance. Plowden’s clinic is one such clinic where students handle a multitude of cases every day under his supervision.
2. “Advise and referral clinic” where the students do not render legal advice but are contact points with the clients to advise what should be done next and issues which needs to be raised by the clients upon referral to a lawyer.
3. “Public-interest litigation clinic” where it specialises in taking a case and trying to change the situation which the case represents nationally either through the courts or advocacy with the authorities and agencies.
4. “Rule of law clinic” where the work is mainly in countries which have been torn apart by war or internal conflict or violent upheavals, with the aim of establishing, reclaiming, restoring and advancing the rule of law. It seeks to place the rule of law back into the social context of the affected society.
5. “Non-clinic based model” where the students are taught a syllabus now known as “street law”, and are assessed on it for their law degrees. Street law trains law students to teach people how the law affects them “on the street”. It basically aims to show how the law works, how the law protects, how the law prevents, how the law solves legal problems, how the law may be changed through citizen participation and how alternative methods of dispute resolution may be used.
5.1 The street law programme was established in the Georgetown University Law Centre in the US in 1972. The first international street law programme was established in the University of KwaZulu-Natal, Durban, South Africa in 1986 by McQuoid-Mason. It has now been incorporated in syllabus of the UK’s College of Law for England and Wales. It is being introduced in different parts of the region, most notably, in Cambodia and Malaysia.
5.2 It deals with the academic and practical aspects of law and community services including subjects such as introduction to law, criminal law, human rights law, HIV/AIDS etc.
5.3 Its methodology is practical and the use of interactive teaching methods such as role plays, games, small group discussions, opinion-writing, mock trials, debates and filed trips. The students are also required to do community service and be assessed on it, such as working with prisoners and community groups.
5.4 Its benefits to the students include:
(a) Able to explain law in simple language.
(b) Writing skills.
(c) Thinking on the feet.
(d) Advocacy and trial skills.
(e) Analytical skills — requires problem-solving.
(f) Public speaking skills and confidence.
(g) Dealing with everyday legal problems faced by the layperson — it gives unique insights to problems faced by for example, prisoners.
5.5 It is based on experiential learning and upon the social context of target communities. Social justice through academic study and the experience of community service prepares the students for the real world. There is a written examination which constitutes 50% of the degree and for the other 50%, the students have to complete the assignments in a “Street law Journal” such as writing up and doing a mock trial, preparing questions for examination-in-chief and cross-examination, preparing and making submissions etc.
5.6 Street law is going to be experimented in Malaysia through the NGO, ERA Consumer, with the formulation of a course syllabus in collaboration with McQuoid-Mason.
I think we should monitor this closely as the standards of the profession are declining and this methodology of teaching should not be discounted in an attempt to improve it. The Kuala Lumpur Legal Aid Centre has been running similar programmes for pupils, and I do not see why we cannot start advocating this with law schools. I had previously approached the Centre to see if in a small way, we can start educating law students and I feel this pursuit will be useful if there are support and funding.
The core purpose of clinic is to integrate values into the profession. Academics at law schools are guilty of presenting law as being “immoral”, in the sense of saying — “what does this case say?” or “what is the law?”; not “what the law should be?”. Clinic brings up questions for students as to “values”, and it assists in the development of “student autonomy” and space for them to develop themselves. It is not for advocates of clinic to say or tell the students what these values are, but merely to lay the opportunity for law students to discover the values (whatever they may be) for themselves.
Clinic is demanding because it asks difficult questions such as “where is your humanity?” and ensuring that legal educators do not just train lawyers, but that they “educate people” by taking a step back for the students to develop their core.
According to Kay Maxwell (Associate Professor of the University of Wollongong, New South Wales, Australia), education is a “transformation of knowledge and of self”. The “idea of attaining knowledge is for the purposes it should serve” which to Aristotle meant attaining the truth. Educators must care for the students in the way which allows the development of the individual professionally, and also for the development of the community. Education is not a “transfer of knowledge” but a “transformation of self”. The contextualized nature of legal knowledge and what it means to be a lawyer requires an interaction between the individual and the context which surrounds him.
In sum, the four ethical principles of clinic are as follows:
1. Client autonomy — respect for client’s choices and it is for them to decide the course of action upon advice.
2. To do good.
3. To do no harm.
4. To seek and ensure justice and equality.
Liverpool-Chelsea
After a long day, I spent the night watching the Champions League game which ended in a dull 0-0 draw. Fortunately, the sports bar I was in was nice and the food was good.
Source: https://www.malaysianbar.org.my/article/news/bar-news/news/special-report-v-from-prague-the-role-of-clinical-legal-education. Archived at https://perma.cc/CHW3-5CRU
