19 February 2007
A few years ago a final-year student sought my advice on how to make her application for a training contract stand out. She was a young-looking 20-year-old with a firm expectation of a high 2:1. But she was realistic enough to realise that academic calibre and not going to a famous law school was going to mean that she needed something else.
That 'something' turned out to be that she had not only represented clients, but won more than half-a-dozen cases at the Asylum and Immigration Tribunal - a significant achievement before she had even graduated. But up until then she had seen this as par for the course, as the experience had been built into her course.
Fewer than a dozen universities recognise that this form of 'situated learning' and the experience of looking at law in practice is a valid context for understanding academic concepts of law at undergraduate level. Some set up their own law clinics in-house, while others place the student in real working environments. This should be regarded as being akin to sending zoology students on a field trip to study indigenous life in its habitat. Invariably, a 'clinic' is a highlight of most participants' legal study and often decides not only their direction in law, but whether or not they want to spend thousands of pounds on qualifying.
But a clinic alone is not enough. Will the arcane rules against perpetuity and the jurisprudential complexities of Keck (1993) really give them the full grounding to interview a client with post-traumatic stress disorder, who may or may not be lying to save their skin?
The Law Society, when reviewing the provision of legal education, lets both undergraduate and LPC providers off the hook by keeping the academic and vocational stages conveniently separated. The undergraduate syllabus needs more of a focus on the commercial realities, ethics and administration of legal practice, or indeed on the reality of the courtroom or meeting room.
The zoologist needs to know something about the environment of the turtle, that its natural habitat is not the zoo or the specimen case. Why then do we let students believe for three years that the law lives amid The Weekly Law Reports and stalks the journal stacks in libraries?Bringing a feel of what reality is like into a university is difficult. The problem with 'situated learning' in law schools is threefold.
First, most academics are career academics who have eschewed or escaped legal practice. Fact management and the ethics and pressures of practice are things that can be put off to LPC or BVC. Instead the focus is on the interesting and challenging bits; back to perpetuities and Keck.
Second, 'playing at lawyering' is regarded by some as not being at real academic activity.
Finally, it is not as though law schools have the facilities to offer students real experiences of law.
Some universities, however, have not been held back by these restrictions. In these cases, while staff are academics, many are or were practitioners from a range of backgrounds. For example, the University of Derby has a full-size courtroom with digital recording technology and interview suites as well as another 'family-friendly' courtroom enabled for the giving of electronic evidence.
Creating the reality of law in the laboratory is not just a question of having the right kind of rooms. Of course, the real resource for a realistic experience of law is people. Learning lessons from the health education sector, experts and participants from other professions must be brought in, drawing on their trainees as 'victims' for law students to practise on.
A growing number of educators from other professions, ranging from forensic scientists and social workers to police officers and radiographers, want to expose their trainees to the experiences of law that they will face in practice - putting together witness statements, attending court, having their evidence challenged and liaising with lawyers for example. Often they explicitly want to have challenging situations for their cohorts, so student lawyers suit them particularly well. This is not to say that law students utilising a 'clinic' should not study the same academic subject to the same depth as any other law students, but they should also participate in this process.
As such, their caseload should be dropped into their lives with as much notice as you would get in practice and be resolved in real time. At Derby this is done in the students' second year of studies.
They should be given a billing target, keep timesheets, have training sessions led by practitioners who treat them like trainees and be given the academic input necessary to contextualise this practical experience. The process should effectively draw together academic concepts by testing them in practice.
Even land law is covered in this manner. Leaving aside the delightful distractions of evidence management and witness wrangling, land law's bookish syllabus is given an airing. Students at Derby last year were assessed on their ability to put together a commercial property possession case on paper and then to advocate it in the mock courtroom, while their opposite number would defend.
Then their opposite number put up a similar claim and they would defend. The teams are also expected to sit on the bench, judge their peers, write the judgment and draft the orders. Everything, down to case listing, should be designed to teach lessons about the dynamics of law.
This does wonders for the performance of the students in land law, but it also gives them the unique chance to see and participate in every aspect of a case. For example, time limits mean something to students when they have experienced the problem in practice. Practitioners should be involved in the process to give authenticity and keep the models of practice current.
While the emphasis of such programmes is not on training lawyers, it does have an impact on legal competence. Academic and vocational education continue to be formally separated, but that distinction may not serve employers, clients or the bona fide student of law.
•Kevin Bampton is head of the law school at the University of Derby