Monday, September 15, 2014
To state the obvious, not only do experiential classes need to be added to the law school curriculum, they need to be added in the proper way. The sequence used to teach doctrine and skills is very important. Certain items need to be taught before students can move on to more advanced items.
Adam Laparello and Charles E. MacLean have written an important article concerning how material and skills should be taught in law school. Experiential Legal Writing: The New Approach to Practicing Like a Lawyer.
1. "Experiential learning encompasses five elements: (1) experiencing, (2) reflecting, (3) processing, (4) generalizing (identifying learned principles), and (5) applying to different contexts the information learned from the initial experience."
"The experiential learning cycle must be connected to the development of professional competencies, and students must acquire these competencies before they can apply them to different contexts. Context is essential, because it often requires a student to apply or emphasize different skills. Thus, mastering a competency in one context, e.g., drafting an appellate brief, does not mean that a student can draft a motion to dismiss or a trial brief effectively. Likewise, oral advocacy skills at the trial and appellate court levels are fundamentally different. Thus, the skills a student acquires when drafting an appellate brief or arguing before an appellate court do not necessarily transfer to other litigation documents or stages of litigation. In other words, law schools must train students to master the skills that apply to specific documents in particular contexts, but that do not necessarily apply across contexts. For that reason, repetition of the same activity and exposure to the various areas of litigation and transactional practice that a student will encounter in the real world are essential. Coupled with the fact that the skills required to competently practice law (including writing, reasoning and analysis, research, sound judgment, strategic decision-making, counseling, and negotiation) are inherently complex, students need sufficient time to repeat, reflect, and refine context-specific skills.
2. "If experiential learning is overused in a first-year doctrinal course, it may interfere with substantive knowledge acquisition and development of critical thinking skills."
"Doctrinal courses should, however, incorporate more problem sets or fact patterns so that students can apply their legal knowledge to hypothetical or real-world problems. One way to facilitate this is by flipping the classroom, which requires students to watch short videos before class in which professors are outlining the substantive law. This allows the professors to spend less time in class discussing basic legal principles, and more time discussing real-world problems to which students must apply their knowledge. Such an approach is experiential in the sense that it trains students to be problem solvers, but it maintains the focus on developing critical thinking skills."
3. "One mistake law schools make is conflating practical skills and experiential learning. That causes students to enroll in clinics and externships before they are ready. Experiential legal writing, however, teaches practical skills, persuasive writing and client counseling negotiations skills, and improves analytical ability, both of which are essential to maximizing outcomes in clinics and preparing students for the real-world practice of law."
4. "Of course, success of an experiential legal writing model depends on effective assessment, both at the formative and evaluative stage, that measure real-world skills and core competencies."
I agree that first-year doctrinal courses should not include complicated experiential assignments, as defined in the article. Rather, they should go deeper into teaching students how to think like a lawyer and how to apply that knowledge in problem-solving exercises. Thinking like a lawyer should include the miniskills that make it up--deductive reasoning, analogical reasoning, distinguishing cases, synthesis, and policy-based reasoning. (see my book, Think Like a Lawyer: Legal Reasoning for Law Students and Legal Professionals (ABA Pub. 2013). Students should also apply their newly-learned doctrinal knowledge to problems in first-year classes. For example, at the end of the unit on intentional torts, the students could solve intentional torts problems, both outside and inside class.