ISSUES in GLOBAL LEGAL EDUCATION

CLINICAL LEGAL EDUCATION: A PROBABLE SOLUTION TO ISSUES IN GLOBAL LEGAL EDUCATION “…the rigid demarcation between the ‘academic’ and vocational’ stages needs to disappear; what is required is a new partnership between the universities and the professional bodies at all stages of legal education and training.” (ACLEC, 1996) Introduction Education is not simply about training an inquiring and empirical mind. It is not solely about producing that, which can rehearse, disassemble and analyse the most recondite fact. To do that is valuable but there must be training of intelligence that is at the same time, a training of sensibility, a discipline of thought which is also discipline in scrupulous sensitiveness of response. To meet the demands of education and especially of legal education, endeavours should be made to bridge the gap between theory and practice, which might prove to be vital to provide a remedy for other problems in the educational curriculum. Towards this objective, various Bar Associations and Universities are setting up legal clinics. The object of this paper, thus, is just not to explore the extent to which the Langdellian revolution[1] has isolated legal education from the practicing Bar (as some academicians would argue), but to forward the concept of legal clinics to deal with the problems which the current legal education suffers.

The legal sphere suffers massively from the problems with vocational, ethical, technical and cultural dimensions. It is pertinent that newer and innovative methods are sought to solve these problems, which make the condition of the profession deplorable. It is proposed in this paper that clinical legal education if properly channelled may go to great lengths to make the legal education free from the vices which have crept in. Global Legal Problems: The global legal education is fraught with several problems, be it cultural, vocational, technical or ethical. Each one of it has the capacity to jettison the future aspirations of the current legal education. The most important issue is the diversity in cultural climate. In the latter fifty years of the 20th century, notions of an ideal that were fundamental to an older ideal of law have declined. “To suggest today that a professional class should represent an ideal of manners and aesthetics in which, most important for the law, fair play and civility are signal virtues, and the ‘right’ is distinct from the ‘win’ or the ‘profit’ is to open oneself to changes both of both elitism and of naivetA©.[2]” The professional is now seen as interested more in the self that in the client and more interested in the clients’ return for more business than that some notion of justice or any other goal be served. The degradation has, perhaps, sped the cultural inflation of the nature of credentials, so that the ordinary phenomenon that the cachet of credential will always devalue has been accelerated. New cultural elite have arisen based on fame and salary, which may be more democratic than the old cultural system of elite based on manners and money, but which has had the effect of diminishing the significance of the profession, even at a time when they are more universally accessible for membership than ever before.[3] Thus, the idea that a lawyer should have a particular manner and reflect a particular ideal of behavior or virtue is no longer current and the idea that the legal system should ensure such personality in its graduates is in decline.

The role of legal education has changed drastically. Young graduates are more and more using law as a finishing school and moving away from active practice to alternate careers as in publishing, arts, agriculture, management and host of other spheres.

Thus, while the preparation of new lawyers remains a defining element of legal education the product of such a change is decline in undergraduate education. Another significant change is in the attitude of the young generation. The product of the television based, consumer society, the majority of the students have come to expect that education should be entertaining, risk- free and easily accomplished. Students have become purchasers of education, willing to buy only the minimum necessary and resisting the purchase of expensive additions to the product the students initially desired.

The commodification of education[4] has in turn led to the schools in lessening the standards of both the admissions and performance. There also remains a challenge to make the lawyers ‘good’. One of the most difficult tasks of the law teacher is to find out when the students are to be introduced to handling of ethical conflicts.[5] The present teaching of law, despite increasing contact between legal scholarship and ancillary disciplines, remains largely unaffected by other branches of normative sciences. Like ethical and moral philosophy because of the enduring dominance of positivist legal science within majority of law schools.[6] The law students seem more pre- occupied than ever before with the acquisition of grades, knowledge, know- how and skills determining their entry into legal service industry, thus, their self- notions of justice are getting tarnished. There is a belief that the current structure of legal education (mostly based on the innovations made by C.C. Langdell[7] does not sufficiently integrate theory and practice. This is because of several factors; a few being the gap between the doctrinal/ rules oriented Socratic method and realities of the legal profession has grown in recent years.

Tied to this has been the growing dissatisfaction of many practicing lawyers with the product of traditional legal education. Unfortunately, when most law students graduate they are not ready to practice law but instead only ready to begin to learn to practice law through the apprenticeship that they will experience as associates. Thus, it can be said that the law schools have become increasingly alienated from the practicing Bar. Another issue, which permeates in the discussion in the legal circles, is the hiatus between law and technology. With the swift development in technology, especially information technology and cyber law, law finds hard to moulds itself at the same pace. To the cannons of common law intact with such rapid changes, the interpretations to them also need to be changed expeditiously. Clinical Legal Education: A Brief Overview Clinical legal education may be simply described as learning through application, practice and reflection. It is quite different from the traditional legal education.

The lecture- seminar method so common in the education of the law students does not meet the clinical demands, however they are vital as they render vital information being predominantly content and assessment led. Types of Legal Clinics Legal clinics may be divided into three types[8], (a) in- house real client clinics, (b) out- house real client (real world) clinics, (c) simulation clinics. The aims and objective of each are in principle the same- the exposure of law students to law in practice setting and to do analysis, management and process of the problems arising. The in house real client clinics In this model the clinic is based in the law school (hence in- house) and the unit is offered, monitored and controlled in house too. The clients are real with actual problems requiring actual solutions (hence real client[9]). The client base may be selected from the public at large or from a section of the public, for example, staff or students at the institution or through specific referral from other agency (for example law centres, or local solicitors) The service might be advice only or advice and assistance. Clients may be interviewed, advised orally and/ or in writing, and helped with the preparation of their cases. The word ‘case’ is not strictly used to mean disputes.

Clients may, for example, want to draft a will or discuss a new partnership. This help may take the form of the clinic corresponding with opponents, third parties, their lawyers, insurance companies and the courts.

The clinic may offer representation either in a specialist area (like, before an industrial tribunal) or more generally. The clinic may operate as paralegal services (which means that there are no solicitors involved and hence no need to adhere to the Law society’s Codes) or a fully-fledged solicitor’s practice. The out- house clinic An attractive alternative or addition to the in-house real-client clinic is a clinic that involves students in existing legal work outside the college or university. Those responsible for running such units effectively tap into existing services. These may be found in private legal practise, local and national governments, private and nationalised industries, and the voluntary sector.

Again the format is varied. The clinic is ‘real-client’ in the sense that it involves real individual clients and their problems. It is the real world input, coupled with clearly worked out leaning objectives that can turn this into a meaningful learning experience becomes little more than an unstructured observation of someone else’s practice. The clinic may operate on the basis of advice giving only, or it may offer representation as well. Students can, for example, take an option to work with free representation unit. Such agencies are run by trade union councils and other non-statutory bodies.

The clinic might also take the form of placement, short or long term, in, say solicitors’ office or barristers’ chambers. The principal difficulty in this approach lies in the supervision and monitoring of the clinic. All supervision in the clinical wok is time-consuming and challenging. Simulation clinic This clinic recreates selected elements of the problems, practice and procedures otherwise found in a variety of real-client work. This may be done in number of ways.

Cases can be acted out in their entirety, from the taking of initial instructions to a negotiated settlements or Court hearing. Such sessions can be run as intensive courses (where the concentrated efforts tends to make the exercise increasingly real in the students’ minds) or spread through all or part of the academic year in weekly slots. Parts of a case might be examined in greater details that at hat of others, e.g., making a bail application in the criminal procedure or drafting pleadings in a civil action. Particular skills can be concentrated on (e.g., legal research, interviewing or advocacy); using staff, students or professional actors to enable role-play to take place. This type of clinical legal education has several advantages.

The risks and unpredictability of the real-client work are removed. The process can be regulated to suit the purpose.

The same materials can be run and rerun. The cost of offering a stimulation clinic may be substantially real clinic may be less than real client variety in terms of the intensity of the supervision and the need of clerical support. There is not the same requirement in terms of premises and equipment. The staff and students do not carry the same degree of professional responsibility.

Simulation can work well in conjunction with a real client clinic using the real cases as material for reproduction. The drawbacks are that it is hard to craft exercises and administer the simulation, e.g., finding witnesses or expert opinion and also that simulation has less of the cutting edge feel which is found in the real client experience. Contribution to the objectives of under-graduate legal education It is agreed that if the purpose of clinical techniques were purely to develop technical abilities to become a lawyer, it would not be an appropriate part of the law degree. However, there are some vital contributions that cannot be overlooked:

1. It can provide experience of the most important context of all: how the law actually impacts on the lives of the common people.
2. It can encourage students to reflect critically on what their lecturers tell them.
3. It can challenge the inherent elitism of a course of study based on appellate cases and under complete control of the lecturers by introducing cases at the stage at which they affect ordinary people and providing an outlet for different experience and different perspective.
4. It can bring into focus the ethical dilemmas, which underlie legal decision-making at all levels.
5. It can develop the research, analytical and communication skills which are essential for an effective education.
6. It can help people both to work more effectively with others and to develop independence and self-reliance.

Clinical Legal Education as a Solution to Global Legal Issues This section postulates that clinical education would prove to be an effective tool to cure the vices crept in legal field and educational curriculum, mentioned in Part II of this paper. Work in moral developments in other fields suggests that changes in moral judgement are triggered by ‘crisis’ situations which force you to consider your beliefs.[10] This is precisely the valuable function that clinical experiences can provide, when one, as a student or lecturer, is faced (either in a simulation, or when working with real clients) with uncomfortable choices. Such experiences thus achieve more than making moral dilemmas concrete.

They may also provide a focus for a critical view of the legal system, the expectations of practice within it and the laws, which it applies. They may also provide the ‘crisis’ which can simulate serious reflection on your own moral judgement.[11] The learning of the professional codes per seven can be best left to vocational stage of legal education. The objective is not to achieve a uniformity of approach to ethical problems but to develop in students an awareness of the ethical elements to legal decision making and to encourage ethical behaviour. Some might adopt a particular position (for e.g., maximising client autonomy) which will inform all their decisions. Others might adopt a more pragmatic approach, recognising a variety of principles as potentially relevant and taking the view that the balance between them should be a function of the particular facts and the circumstances of the case.

Julian Webb, in his article[12], argues for a three- stage development. He proposes a first- year foundation course, which explores as part of its remit the ethics of the legal system. This would be followed by a second year legal profession and ethics course, which would combine discussions of how to conduct real cases.

Students undergoing such a course will be exposed to the ethical issues arising from legal systems, law itself and its practice. They will be encouraged to reflect on the material they are working with elsewhere upon their degree from an ethics perspective. Experiencing real and realistic situations is the best way for students to deepen their understanding of the law and to acquire competence in its practice. Competence is an ethical duty. It is pointless to sound ethical standards if one is incapable of achieving the goals suggested.

Clinical methods contribute both to your critical understanding of ethical issues, and your ability to put that understanding into effect in an ethical and effective practice.[13] Clinical education brings the students closer to the learning process. It emphasises on ‘student- centred education’ rather on a ‘teacher- based’ learning. It is the student who actively finds learning and not the teacher putting the learning in to the passive student. The curiosity of a student dies when the teacher thrusts his knowledge upon them. It is generally observed that a third year student seldom asks question in comparison to a first year one! Graham Gibbs[14] describes education as what is left when the facts are forgotten (emphasis supplied). What one actually knows, matters little. How one finds, uses and assimilates knowledge is important. How what we learn changes us as a person is far more pertinent than any text. Clinical education provides a student with an urge of intellectual enquiry, which is so profound that the student is bound to get affected by it. It leads to self- analysis and self- contemplation, which is the underlying objective of education.

This kind of vocational training provides the student with a rigorous schedule, which is suitable and thus, a wet stone to sharpen not only their skills but also their intellect. Vocational education also ensures that education is not treated as a mere commodity, which is bought as much as necessary. The students feel responsible and proud of the work they do, thus they start respecting their own work and work done by others. Thus, they come to know the value of the work and thus the true value of education which cannot be bought and sold.

Such massive interaction with practising lawyers also makes them to be abreast with the latest technologies prevalent in the profession. Clinical legal education is a bridge, which connects theory to practice. What is learnt through books is easily forgettable as it is seldom applied, but what is learnt through experience can never be forgotten so easily. Thus, clinical education strikes a balance between the students need to be catered with both, the conceptual and the practical aspects of law. Conclusion It is submitted that the concept of legal clinics has yet not been properly concretised, if shaped somewhere, then, it is yet not properly exploited, explored and utilised. Legal clinics, like a medical clinic has the potential to upgrade the standard of the law students and instill them with more confidence and enthusiasm for the subject. It also gives the student, specially the undergraduate ones, a critical eye over the field and thus makes him aware of the challenges ahead.

However, the idea needs to get more organised as it suffers from certain problems. Any discussion of clinical education would be incomplete without a consideration of recourse implication.

Thus, the first and the most important problem is of finding and securing resources. A second question regarding clinical education is how do we do the assessment part of the learning? Assessment in a form other than examination or essay assignment can be labour intensive. It is sometimes difficult to ensure that all students, especially in real- client work, are exposed to some quality of material on which they are to be assessed. An assessor may also fall prey to unconscious discrimination towards the student he enjoys to work with. However, it is submitted that if the virtues of the clinic are as claimed- an enhanced student centred learning experience which complements the study on the rest of the course- the resources given must be weighed in terms of its overall educational outcome. It other words, the clinic may cost more than other units on a programme, but it may produce more in terms of the quality and even quantity of education that results. The legal clinic is not only to stay but also has an important role fill in the education of lawyers. This has been already acknowledged in UK as the Lord Chancellor’s Advisory Committee shows.

The establishment of CLEO has been a vital step towards the acceptance of clinic methods. Rest of the legal world should soon follow the footsteps of UK.

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[1] After Mr. C.C. Langdell. Appointed dean of the Harvard law school in 1870, helped to create the modern paradigm of legal education. He was instrumental in establishing the use of case books and Socratic Method at Harvard. [2] Sheppard, Steve, “The History of Legal Education in the United States” , Salem Press Inc., 1999, at p. 1 [3] ibid [4] emphasis supplied [5] Kim Economides, “Legal Ethics- Three Challenges for the Next Millenium”, 1999 [6] P.A. Thomas (ed.), “Legal Frontiers” Albershot, Dartmouth Publishing , 1997 [7] Supra at Note 2 [8] Brayne, H, Duncan, N and Grimes, R, “Clinical Legal Education: Active Learning in your Law School” 1st Edn., (1998), Blackstone Press Limited, at p. 12 [9] Sometimes also referred to a Live Client, however, increasingly becoming uncommon, as there is no antonym of it which can be used. [10] F. Osler and A. Schufli: “The this line phenomenon: helping bank trainees from a social and moral identity”, in G. Lind, H.A. Hartmann and R.Wakenhurst (eds.), “ Moral Development and the Social Environment” (Chicago: precedent pub. 1985), p. 150, at p.166 [11] Brayne, H, Duncan, N and Grimes, R, “Clinical Legal Education: Active Learning in your Law School” 1st Edn., (1998), Blackstone Press Limited, at p. 209 [12] J. Webb, “Inventing the Good: A Prospectus for Clinical Education and the Teaching of Legal Ethics in England”, (1996), 30 Law Teach 270 [13] Ibid at p. 231 [14] G. Gibbs, “Twenty Terrible Reasons for Lecturing” , (Oxford Centre for staff Development)

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