GENERAL ISSUE: ARTICLE: Evaluating Clinical
Law Teaching-Suggestions for Law Professors Who Have Never Used the Clinical
Teaching Method
By Kimberly E. O'Leary n1
SUMMARY:
... I. INTRODUCTION: IT IS IMPORTANT TO UNDERSTAND THE GOALS OF CLINICAL TEACHING
AND TO RECOGNIZE THAT CLINICAL TEACHING MIGHT LOOK DIFFERENT FROM OTHER LAW
SCHOOL TEACHING ... Every clinical law professor requires students to engage in
some type of planning process. ... A third type of clinical course focuses on
learning substantive law, and the clinician would arrange an experience in
which students have opportunities to learn that law. ... The first weeks of a
clinical course are often more heavily instructional; clinic faculty orient the
students to this intensive and often self-directed style of learning. ... Is
the clinical professor awarded opportunities to attend clinical teaching
conferences or otherwise develop his or her clinical teaching skills, and does
the professor take advantage of such opportunities? ... Unlike a classroom
teacher whose contact with students consists of written materials, class
discussion or lecture, and perhaps e-mail exchanges, the live-client clinical
faculty member and the extern supervisor may interact with students on a daily
basis by teaching and advising. ... The experienced clinician is likely to have
a better sense of what makes a good clinical teacher, and the client is
protected. ...
TEXT:
[*491] I. INTRODUCTION: IT IS IMPORTANT TO UNDERSTAND THE GOALS OF
CLINICAL TEACHING AND TO RECOGNIZE THAT CLINICAL TEACHING MIGHT LOOK DIFFERENT
FROM OTHER LAW SCHOOL TEACHING
Law professors who use clinical methodologies are sometimes subject to review
by other law professors who do not. These reviews occur because many clinical
teachers are on unified tenure tracks or clinical tenure tracks that include
non-clinicians on the review team. n2 Additionally, clinical teaching
methodologies are being incorporated into a variety of courses other than the
traditional in-house clinic. Written explanations of clinical teaching are
[*492] abundant. n3 Clinical law teaching conferences occur often
to orally transmit knowledge about clinical teaching ideas, techniques and
problems. n4 This article is a short, simple overview of clinical teaching
methodologies to assist reviewers not versed in such methodologies. n5
Clinical classrooms often look and sound very different from traditional law
classrooms. Perhaps more importantly, most clinical teaching takes place
outside of a formal classroom setting. A promotion or tenure review committee
cannot use the same language, concepts or benchmarks when assessing clinical
teaching as it uses in assessing many doctrinal courses. While the overall goal
of assisting a law student in becoming a better legal thinker, planner and
practitioner is the same, the specific teaching goals of each type of course
can be quite different.
What follows is a brief framework for evaluating clinical law teaching. While
many of the underlying concepts apply equally to live-client clinics, extern
experiences and simulation courses, there are important differences. n6 This
article will provide an evaluative framework for clinical courses generally,
specifying where live-client clinics, external clinics and simulation-based
courses might differ when appropriate, but will not go into great detail about
the differences because to do so would make brevity unattainable. Because
clinical courses vary [*493] greatly, the format of this paper will
focus on the types of choices available to clinical law professors in teaching
a clinical course. Also, it will examine in some detail the assessment of
student supervision. There are more than 1300 full-time law professors who
currently teach using a clinical methodology. n7 This article is intended to
assist non-clinicians in evaluating clinical teaching, but it is not intended
to stifle debate among clinicians about teaching methods, goals and techniques.
The author welcomes such debate and encourages refinement, critique and
disagreement with the ideas contained herein; what is important is that
clinicians begin to develop reliable models for clinical teaching evaluation.
It should also be noted that oftentimes, professors tend to assume that those
under review should have the same teaching goals as the reviewers. This
assumption should not go unexamined. Experienced professors should take the
time to question and understand the value of new approaches. Unfortunately,
there are few good models for evaluating law teaching generally. n8 Many law
professors take the attitude that they "know good teaching when they see
it." This approach is inherently conservative and limiting to the growth
of legal education generally. Such an approach is particularly inappropriate
for clinical teaching because clinical teaching often looks quite different
from the traditional classroom. n9 Moreover, new law professors, especially
women or minority professors who teach in clinical settings, might adopt
techniques that are unfamiliar even to more experienced clinicians. n10
Reviewers must be sensitive to racial, ethnic and gender issues embedded in all
law teaching, including clinical law teaching. n11
[*494] Law professors should not evaluate any teaching without
first understanding the particular goals and objectives of the professor under
review. It is impossible to cover all important aspects of any field in one
course, and clinical teaching is no different in that respect. Each of us makes
choices about which areas to emphasize; these choices derive from professorial
judgment about which aspects of the field are most important. Every law
professor should think about which concepts, skills or ideas will be the most
useful building blocks for students to use as the foundation of their
professional lives. The processes discussed in this article should be applied
after and only after carefully understanding the particular teacher's
goals and course objectives. In the clinical context, some evaluating
professors might have an outdated view of what lawyers do based upon prior
practice experience. Unconscious biases might creep into their sense of what
clinical teachers ought to be covering. Reviewers should attempt to uncover
these hidden biases by asking the teacher under review what specific goals he
or she has set for the course. Some of the following questions might be useful:
1. Ask the professor to state in one paragraph the major goals of the course.
What is the professor trying to accomplish? By the end of the course, what does
the professor hope the student will know better than that student knew at the
beginning of the course? This knowledge might be substantive (e.g., learning
poverty law, children's rights law, etc.), process-oriented (e.g., how to
research a particular way, how to analyze a statute), dedicated to learning a
specific skill (e.g., how to draft a pleading, how to represent a client in a
settlement conference, how to work with people from diverse backgrounds), based
on understanding broader issues of justice or equality (e.g., how to analyze
access barriers in a local court system, how to provide legal assistance to
underserved populations), or related to the acquisition of professional
self-awareness (e.g., understanding how well one communicates with a client or
collaborates with colleagues).
2. Why are these goals important? Why are they more important than other goals
the professor might have chosen?
3. How does the professor hope to achieve these goals?
II. THE CLINICAL METHOD SEEN AS A THREE-PART
PROCESS: DEVELOPING ACTION PLANS, A STRUCTURED EXPERIENCE, AND REFLECTION
All clinical teaching involves some form of experiential learning that can be
described in a three-step process: 1) the student learns to formulate an action
[*495] plan; 2) the student enacts that plan through a structured experience;
and 3) the student reflects about the experience and modifies future action
accordingly. n12 The clinical process is thus a blueprint for professional
growth. This paper will examine how the clinical teacher plans, enacts and
modifies this type of learning experience for his or her students. n13 After
providing a brief theoretical framework for why this three-part process is
used, the article will describe factors used by clinical teachers in
establishing the process in their clinical courses. Later in the paper, there
will be a discussion of which of these steps can be properly reviewed by
persons who do not have access to confidential and private information.
Experiential learning is thought to match quite closely maximal learning
experiences for adults. n14 There are numerous psychological, educational and
management studies on how adults, and more specifically, professionals, learn.
While these studies are very complex, one major finding is that adults learn
best when faced with questions that arise in real-life experiences followed by
opportunities to answer and reflect upon those questions. Moreover, learning
does not happen in the same way for all people. Individuals have different
approaches to learning that influence how they learn most optimally. n15 Good
teachers, then, provide context-based learning opportunities, allow students to
direct themselves and provide different kinds of learning environments. n16
Donald A. Schon, a social scientist at M.I.T, has specifically applied learning
theories to study how professionals can improve during their careers. In
[*496] his book, "The Reflective Practitioner," n17 Schon
advocates a process he calls "reflection-in-action," in which a
student professional learns by engaging in ongoing dialogue and discussion with
an experienced professional about the experiences the student undertakes. n18
These and other learning theories form the theoretical justification for much
of clinical law teaching. While not all clinical law professors use the same terms
in describing what they do, most clinical law experiences are structured to
take advantage of experiential learning and employ a variety of teaching
methods.
The team nature of many clinical courses compounds the difficulty of review in
a system that evaluates individuals, which is typical of most tenure and review
processes. Typically, non-clinical law professors have the discretion to
determine their course structure. Many clinical courses are team-taught or are
part of a larger program such as an in-house clinic law office, an extern
program or a trial practice program. In many instances, class design choices
such as choice of experience provided, whether forms are used in the classroom,
the nature of office procedures or in-class content are made by several
involved clinicians, dictated by long-established consensus, or are the result
of other institutional factors. The reviewer must be aware of the decisions
made by the individual faculty member under review as well as those course
components over which she or he has no control. To stay aware of this critical
distinction, the reviewer should consider the following questions:
1. Which aspects of clinical teaching am I being asked to review (e.g. student
supervision, classroom skills, overall program design)?
2. To what extent has this particular clinical teacher played a role in the
aspect(s) I have been asked to review?
A. Formulating an Action Plan n19
Every clinical law professor requires students to engage in some type of
planning process. Plans are developed by combining lawyering theories,
practical information, and legal research. The professor will often expose the
students to theories about the lawyering aspects the course is designed to
teach. n20 This may be done through textbook reading assignments, n21 a variety
of legal and [*497] social science articles, class lectures or
discussions and guest speakers. Other clinical professors prefer to allow the
student to discover underlying theories through an experiential process.
Clinical teachers have different approaches to the role of theory in the
development of professional skills and values. Some clinicians assign materials
that describe a particular theory of the skill or value early in the course and
then require the students to emulate that theory. For example, a clinician who
wants the student to learn "client-centered" counseling n22 might
assign the Binder, Bergman & Price text n23 and then ask the students to
try to emulate that counseling style during the experiential phase of the
course. The professor's action plan should clearly inform the students that
they are required to perform "client-centered" counseling, and the
student's action plan should list how the student intends to implement
"client-centered" counseling. Another clinician might expose the
students to a variety of counseling models n24 and ask the student to choose
one model or to plan the counseling session based upon several theories. A
third approach would be to forego the exposure to counseling models and ask the
student to plan the counseling session based upon the student's own ideas.
Under this approach, the student may be subsequently exposed to counseling
models after she or he has counseled the client and developed ideas about what
does or does not work.
Such plan development extends to a variety of skills or values the course is
designed to teach. Typically, clinicians will require students to develop plans
for some or all of the following skills: interviewing clients and/or witnesses,
counseling clients, drafting pleadings, engaging in negotiation or mediation,
preparing for a trial or hearing or developing alternative solutions to help
the client. The focus of the planning will reflect the focus of the course. For
example, in a course where the professor emphasizes the process of litigation,
the clinician might create opportunities for students to spend most of their
time planning litigation activities -- discovery, pretrial processes, trial,
etc.
[*498] In a process-oriented course, the students might not spend
very much time learning the underlying policies, history, or legislation in a
specific area of law. Rather, the processes of litigation would be more
central. By contrast, in a course in which the professor wants the students to
primarily learn initial interviewing skills, the clinician should create many
opportunities for students to plan for and practice those skills; such a course
might involve students in numerous intake interviews, for example, rather than
court cases. n25
A third type of clinical course focuses on learning substantive law, and the
clinician would arrange an experience in which students have opportunities to
learn that law. In this type of course, students concentrate on the area of
law, underlying policies, history, case law, and legislation. Students in such
a course will spend more time developing action plans that are specific to that
type of law. For example, in an elder law clinic, the professor might require
all of the students to learn the details of how to prepare different kinds of
estate planning documents and what the underlying policies are behind the
various documents. n26
There are several methods to help students develop action plans. For example,
some clinicians favor checklists, forms or protocols to ensure their students
learn to think through the same issues in every case. n27 This approach teaches
students to systematize their thought processes and use logical, rational
procedures in each and every case so that nothing is overlooked. Other
clinicians require students to create plans from ground zero. n28 This approach
encourages students to learn how to plan by relying upon their own resources
and ideas. This method may result in more diverse approaches to problem
solving. The choice of approach is less important than the planning which is
fostered, although the approach used should match the professor's teaching
philosophy.
The discussions between a student and his or her faculty supervisor is the core
of the clinical experience. The nature of supervision discussions varies
depending upon whether a student is in the planning, experiential, or
reflection stage. During the planning stage, the clinical teacher engages the
student in a critical exploration of the choice process of planning. That
process involves assisting the student in generating a wide range of options,
forecasting likely outcomes depending upon what choices are made, prioritizing
actions, and setting deadlines for action. A supervision session in the early
stages of planning [*499] would likely end with a task list for the
student to pursue but no clear resolution of the plan. Later sessions would
involve the student explaining why certain choices were selected (by the
student together with his or her client). This process sets the stage for
reflective discussions later on.
Consistent with the learning theories discussed above, it is generally helpful
to ask the students to discuss how to plan, rather than telling the students
how to do it. n29 These types of discussions can take place in a variety of
ways. Students may have individual meetings with the supervisor or meet in
pairs. These sessions, usually referred to as supervision meetings, typically
occur on a regular basis. n30 Additionally, the regularly scheduled class
meetings may be used to discuss planning. Another method is case-rounds, in
which students present issues from a case to a larger group of students for
discussion and feedback. n31
There are a variety of planning devices which clinical teachers make available
to their students. These devices might include case planning charts, trial
notebooks, protocols, forms, and banks of previous student or faculty plans.
These range from "fill-in-the-blank" type devices to more general,
descriptive devices. Other faculty members ask their students to generate their
own planning in a more free-form style. While approaches vary widely, there
should be some evidence that the faculty has some form of written guidance to
assist students in planning, even if that written guidance is in the form of
questions the student should consider rather than a protocol.
Summary of developing action plan:
1. What are the professional skills or values the students are
expected to learn?
2. Is the student required to engage in a planning process that focuses on
those skills or values?
3. Is the student required to create the plan singly, or as a member of a team
of students?
4. Is the student provided sufficient guidance to create a plan that can lead
to appropriate performance of the skill or value in question?
5. Is the student provided some theoretical framework, either before or after
the initial planning, which enables him or her to understand the range of
issues involved in planning to implement the skill or value in question?
[*500] 6. Is the student given an opportunity to discuss the action
plan in writing, in one-on-one supervision sessions, in small group "case
rounds" or in class?
B. Enacting an Action Plan Through a
Structured Experience
In any clinical course, the catalyst for learning is the experience component.
n32 Clinical professors make many choices when designing the experience
component of the course. The experiences offered should allow the students to
practice the skills or apply the values that are the focus of the course. n33
While students will practice many skills and apply values that are peripheral
to the focus skills and values, priority should be given to those experiences
that are most likely to offer the student the opportunity to practice the focus
skills and values. For example, a federal litigation clinic might have as its
primary focus the skills of designing case theories and implementing the
pretrial phase of the case consistent with those case theories. In such a
clinic, the fact that most cases never go to trial during any given semester
should not be a concern, provided the students have sufficient opportunities to
take a new case and develop a case theory, and work on pre-trial discovery
pleadings, motions and the like.
Another federal litigation clinic might prefer to focus on federal trial work.
In such a clinic, the professor might arrange to take cases only after the
initial intake interviews and preliminary administrative complaints are
drafted. The professor may have several cases in trial mode at any given point
in time. Other skills that may serve as the course's focus include:
transactional work, mediations, diagnosis of legal problems, interviewing,
counseling, negotiations, or community lawyering. As an alternative, the course
could focus on a general lawyering experience, broadly defined.
Another goal might be to have students learn about professional values, such as
mechanisms that provide legal assistance to the poor, ethical and moral issues,
or competency issues. Cases chosen should allow students to experience the
practice of the chosen skills or the judgment involved in choices based upon
selected values.
Whatever the focus, students should be required to experience challenging
professional situations that require decision-making and the exercise
[*501] of judgment. n34 The prevailing model is one in which the
student engages in the primary lawyering tasks that are central to the
experience. They engage in such tasks as conducting client interviews,
appearing in court, and drafting documents. The faculty member provides useful
critique and ensures that the student thinks through the relevant
considerations prior to performing important tasks. Thus, in such a clinic, one
might see moot performances of a critical trial or negotiation session prior to
the actual event. Much of this questioning and critique generally takes place
in one-on-one supervision sessions, but occasionally similar activities occur
in classes or "case rounds" sessions. Most clinicians hold the view
that optimal learning takes place when the student assumes primary
responsibility for analyzing the issues, making judgments, and executing the
plan.
However, there are some programs in which the students "second-chair"
faculty members or more experienced students. In these programs, the professor
performs more lawyering tasks while the students do much of the background
work. The students observe tasks such as interviewing a client or appearing in
court. This type of clinic operates on the assumption that students can learn
better by observing excellent lawyering than by engaging in all tasks by
themselves. n35 The students should observe the professor's work and be given
an opportunity to critique it.
A third approach mixes the two methodologies. The students are given primary
responsibility for most tasks. In certain situations, however, the faculty
member assumes responsibility in order to provide a model for the student. n36
When reviewing clinical teaching, it is important to know which philosophy is
adopted by the clinician. The reviewer can then assess how well the clinical
teacher is fulfilling the chosen model. The reviewer should ask additional
questions if the students are not assuming most of the primary responsibility
for lawyering tasks to ensure that such an occurrence is by design.
Other considerations are relevant in assessing the quality of the experiences
offered in the clinical course. For example, the skills the student learns
should be relevant to current practice standards. It is incumbent upon the
clinical professor to ensure that the experiences the student engages in are
not outdated due to changes in law or practice. For example, in at least
several mid-western states, family law underwent drastic changes between the
mid-eighties to the mid-nineties. Many open issues of pleading and practice
became standardized by local court rules, forms, and procedures. If a clinical
teacher chose a family law practice to emphasize pleading skills in 1980, a
1998 family law practice might not serve those purposes. The clinical law
teacher must evaluate whether student experiences continue to serve the
purposes for which they were originally chosen, or whether new purposes are
more in line with current or emerging legal practice.
[*502] Another question related to the quality of the experience is
whether there are adequate support systems in place for the student to practice
quality lawyering. The student should have access to current legal resources in
the areas in which he or she is practicing. These resources should include
local and state primary research materials as well as commonly used secondary
sources. The student should have ready access to other professionals in the
field and information and referral resources for clients. There should be adequate
support for basic office functions such as producing written work and answering
telephones as well as more specialized assistance such as computer applications
and expertise about the specialty areas of law in which students work. Some
clinics hire social workers to help students find resources for clients that
inexperienced lawyers would not find on their own and to train students to work
with non-legal professionals. The reviewer should once again be aware of the
extent to which the allocation of these types of resources are within the
control of the individual faculty member under review.
Additionally, the clinic must work out a plan to integrate student work into
local judicial or administrative legal systems. Clinical teachers consider
numerous factors when deciding how to participate in the legal system. They
include: whether certain types of work can integrate easily into the legal
practice systems within the confines of the educational term; whether certain
work will further law reform goals of the clinical program; political
considerations such as the effect of the work chosen relative to the needs of
the local bar or the sensitivities of local judges to having law students in
their courtrooms; and whether indigent clients need a stronger or, in some
cases, more confrontational voice.
Finally, the clinical professor must monitor the students' caseloads. Do the
cases assigned to students give them enough, but not too many, worthwhile
experiences that emphasize the chosen skills? There is great diversity among
clinics about the optimal caseload size. No specific number can be used as a
benchmark because case types vary widely. For example, three students might
work an entire term on one federal class action case in one clinic, while one
student could competently handle five estate-planning cases in another.
Moreover, clinics are offered for different amounts of credit, resulting in
widely divergent allocations of time between students in different clinical
settings. Attention should be paid to whether students have enough cases to
have an experience worth reflecting about, but not too many cases to have no
time for reflection. Substantively, the cases should be challenging without
being too complex. These are issues that require frequent fine-tuning by the
professor.
Questions to ask related to the experience component:
1. Is the student required, as a result of the experiences
provided, to practice the skills and make choices about professional values
that are the focus of the course?
2. Is the student engaging in the primary lawyering tasks, singly or in pairs
or small groups? If not, has the professor consciously chosen an alternative
model and do the student's experiences match the chosen model?
[*503] 3. Does the student have adequate support to engage in
relevant, high quality lawyering tasks?
4. Has the clinical professor established an experience that enables a student
to focus on the relevant skill and value choices in a way that demonstrates the
professor has planned how the students will interact with local judicial or
administrative legal systems?
5. Is the student presented with experiences that are complex enough to be
interesting without being overwhelming or unattainable?
6. Is the student given the right number of experiences? Enough to allow him or
her to practice the focused skills, but not so many he or she cannot perform
them well?
C. Reflection
The third step to good experiential learning is reflection upon the experience.
Most clinical educators consider the reflection stage to provide the major
source of learning. n37 The professor should guide the student through a
process of thinking about how well the action plan succeeded: did the student
follow the plan as outlined? If not, why? If so, did it work? These sorts of questions
form the crux of the post-experience supervision process, and can be visualized
as follows: n38
[*504] [SEE CHART IN ORIGINAL]
[*505] Thus, reflection is a feedback loop, taking the student back
to a new action plan while learning from both good and bad choices. The process
demands that students integrate the theory, the experience and real-life events
to learn how to build upon strengths and improve upon weaknesses. Many
clinicians find that rigorous reflection is the most important aspect of the
learning experience. It is through reflection that clinical teachers instill a
life-long habit of professional self-development and growth. n39
Clinical professors must make choices about guiding a student through the
reflective process. One cannot go back and relive every moment of the
experience, nor would an emphasis on minutiae be useful. n40 The clinical
professor must help the student choose which aspects of the experiences are
likely to yield helpful insights. These choices will be based upon the
importance of the issues. This determination is at the core of the
"art" of clinical teaching: assessing which issues are most important
in a particular case and with a particular student is highly individualized and
context-based. Faculty observing this process may have difficulty even noticing
that the clinical supervisor is making these choices or adjusting a discussion
to a particular student. The clinical teacher is responding not only to the
objective performance level of a particular student, but also to that student's
ability and willingness to learn in a reflective process.
The level of attention to individual student needs is very different from the
typical non-clinical course. A breach of professional ethics may take priority
over a strategic judgment about which witness to call first, or vice-versa,
depending upon the judgment by the clinical faculty member of the most
important needs at the time, the interests of the student or client, or the
specific needs of the particular student. For example, the student may have
frozen during an opening statement during the last hearing, so it would be
logical to discuss the opening statement in a subsequent case. Moreover, a
supervisor might conclude that a particular student is open to addressing only
one major problem at a time, and save additional insights for later meetings.
Often the clinical professor will "debrief" the student with a quick
reflective session immediately after an event, and conduct a lengthier, more
relaxed discussion in a later one-on-one supervision session. Sometimes
students will be asked to reflect upon experiences through written assignments,
including weekly journals or mid-semester evaluations. These types of
self-reflective activities are critically important to a quality learning
experience.
[*506] Approaches to post-event reflection vary widely. One
approach to a post-event briefing would be to first ask the student what he or
she observed. Next, the supervisor might ask what stood out as interesting or
important to the student. The student may be asked to describe what happened,
how the student felt about what happened, and why the student thinks certain
events occurred. The clinical faculty member might offer his or her own
insights about what he or she thought happened. Finally, the supervisor may
want to ask the student to consider what needs to be done next. n41 Clinical
supervisors will direct the conversation more or less depending upon the needs
and abilities of the particular student; the important factor is that the
supervisor must insure that the student thinks through the experience carefully
and critically, with an eye toward using the insights gained to improve future
work.
It is important to note that reflection will often involve a discussion of
specific skills such as interviewing, counseling, litigation, mediating, etc.,
but one should expect to see discussions of other types of issues as well. Gary
Bellow and Bea Moulton n42 wrote that the most important aspect of clinical
reflection involved the examination of tensions that arise when new
professionals (students) assume the lawyer role. Such tensions include the
interaction of ethical concerns, tactics, informal legal systems, and power
imbalances. n43 One should expect a good clinical teacher to allow students to
express their feelings and their thoughts about such tensions, and invite the
student to explore the effects of those feelings on his or her lawyering.
Moreover, reading assignments, class or other group discussions, and
supervision meetings are often designed to raise these sorts of tensions. In
particular, younger students often fail to recognize that they have strong
feelings about what they observe: many students, especially those in their
middle to late twenties, often experience sudden discomfort when faced with the
reality of the world and of the legal system. n44 This reality is often
different from their preconceptions. n45 Because a clinical course may be their
first significant "real-world" experience, students often wrestle
with personal moral belief systems while engaging in clinical experiences. n46
Clinical faculty should know how to identify such experiences and respond to
them with empathy and compassion, while also challenging the student to tackle
some of the moral issues analytically.
Students come into clinical courses with a wide range of abilities,
experiences, and learning styles. Clinical faculty members are in a position to
observe specific professional problems that may arise. For example, some
[*507] students are terrible procrastinators, cavalier about ethics
or slow to learn important legal concepts. Such traits may lead to serious
professional consequences if unchecked. It is the job of the clinical professor
to address directly these types of problems. A clinical professor should
discern serious professional problems as early as possible and discuss them
with the student. Moreover, the good clinical professor will try to help the
student come up with strategies for resolving these problems.
Summary of reflection:
1. Is the student required to think about how well his or her
action plans worked after experiencing lawyering events?
2. Is the student required to think about how well he or she performed the
action plans that were developed?
3. Is the student required to assess what he or she might have done differently
to effect a different process or result?
4. Does the faculty member allocate an adequate amount of time to discuss
critiques of student performance?
5. Is the student allowed to offer his or her own insights about what is
working and what is not working?
6. Does the clinical professor offer insights about what is working and what is
not working, or about what has happened during the experiences?
7. Is the student allowed and encouraged to express discomfort or other
feelings about moral, cultural, systemic, or behavioral aspects of the
experience; does the faculty member offer assistance in helping the student
process these feelings in a compassionate yet analytical manner?
7. If a student exhibits particular problems, are they addressed in a timely,
direct fashion and is the student provided help in remedying those problems?
III. THE PROCESS OF EVALUATING A CLINICAL
LAW PROFESSOR
There are some special challenges involved in the mechanics of evaluating a
clinical professor. When evaluating law professor work, peers generally rely
upon a review of written course materials and observations of the professor
teaching students in a classroom. It should be obvious that assessing the work
of a clinical teacher is a bit more complex. In addition to the challenges
already alluded to, such as determining which part of the overall clinical
design was created by the teacher under review or how to determine what sorts
of choices the clinical teacher is making relative to supervising students,
there are other problems not encountered in the review of other law teaching.
These problems relate to the different role of students and faculty in a
clinical course, as well as the confidential and private nature of much of that
work. This section will [*508] describe some of those
considerations and provide some practical suggestions for conducting such
reviews.
A. Temporal considerations
A clinical course is a time-based experience which changes dramatically during
the semester. n47 The reviewer must be aware of the particular course component
being observed. Generally, one can expect to see the clinical professor giving
more help to the students early in the semester to help the student get his or
her bearings, feel more confident and jump more quickly to targeted skill sets.
By the middle of the semester, one should see the student generating most of
the ideas. At the end of the semester, the student should be making most of the
major judgment calls, and the student should be engaging in reflective
activity.
The first weeks of a clinical course are often more heavily instructional;
clinic faculty orient the students to this intensive and often self-directed
style of learning. In some courses, before specific learning about the
particular skills or values can take place, students must understand the
substantive and procedural context of the relevant law. Many clinical law
professors create an opportunity early in the semester to help the students
understand this context. Often clinical professors will bring in guest speakers
or provide overview lectures of specific substance or procedure to facilitate
this process, while others prefer a "sink-or-swim" immersion approach
followed by discussion. Students in a live-client clinic might engage in
intensive simulations, written drafting assignments or "field trips"
to the local courts or agencies to speed up the natural learning curve.
Generally, such opportunities will not provide students with opportunities to
discuss or learn the nuance of the law; rather, they are designed to quickly
instill in each student a common parcel of knowledge that the student will use
as a platform for the rest of the semester.
Similarly, the students must become familiar quickly with the structure of the
course, because it involves much coordination and planning. In a live-client
clinic, you should expect to see an intensive overview of office procedures,
forms used, supervision methods and the physical layout of the office. In some
courses, students actually engage in designing office procedures and choosing
practice methods. n48 In an extern course, there should be an early explanation
of the format of experience -- how the placement will be made, how and when the
student and professor will meet, the nature of the student's responsibilities.
In a simulation course, the student needs to know how the simulations will
work: how, when and where to pick up materials, when evaluations or assignments
will be due, etc. Thus, if you are evaluating clinical courses during the first
weeks of a semester, you are likely to see the professor conveying a lot of
material fairly [*509] quickly and without getting into finer
points of the law, and/or students immersed into role-plays or simulation
exercises.
The middle of the semester is characterized by student-generated activity and
collaborative coaching by the professor. The student, having been given
information and materials, is typically working out self-created action plans
on behalf of a client or as a simulation. At this stage, the one-on-one
supervision sessions between student and faculty are critical. Here, the
faculty member ensures that individual work is taking place (outside of the
session), and the faculty is available to hear the student's ideas, to ask
questions, and provide guidance.
The final stage of the course should be characterized by additional reflective
activity and a transition into a more collegial relationship. Faculty should be
helping students understand how to engage in self-critique. This overall rhythm
of the course is replicated on a smaller scale throughout the course as well.
Each time the student gets a new problem to be solved, the pattern of intensive
help, student-generated planning and reflection is repeated. However, as the
semester goes on, the need for intensive help lessens and the capability for
students to generate and critique their own ideas increases.
Summary of temporal concerns:
1. Is the student provided some sort of explanation up front
about how the course operates? Is the methodology understandable to the
student?
2. Does the student have sufficient context -- substantive law, procedure,
forms, or office mechanics -- for the student to be able to practice the
targeted skills or apply professional values?
3. Is the student given opportunities to assume increasing responsibilities as
the semester progresses?
4. Do changes in the nature of interactions between the supervisor and the
students reflect an identified continuum of professional growth and learning?
B. Methods Used by Clinical Law
Professors
Clinical professors use a variety of techniques for accomplishing their goals.
Typically, clinicians will meld together some or all of the following:
-class sessions
-one-on-one supervision sessions
-small group meetings or small work groups
-partnerships between students working on experiences
-reading assignments
-written assignments
-simulations
-journals
-reflection papers
-exercises and demonstrations
[*510] Many clinical professors find the heart of the course is in
teaching students how to engage in the three-part process for their
professional lives (developing action plans, executing those plans, reflecting
on those plans). Therefore, many clinicians will require students to prepare a
set of explicit goals at various times throughout the semester and to reflect
upon how well they are achieving their goals. It is truly a goal of a clinical
course to engage the student in the process of learning and understanding how
the learning process takes place. n49
Questions Related to Methods Used:
1. What teaching methods does this clinical professor use in this course?
2. Do the methods fit the goals?
3. Is the professor's skill in the methods she or he has chosen appropriate for
her or his level of teaching experience?
4. Is the clinical professor awarded opportunities to attend clinical teaching
conferences or otherwise develop his or her clinical teaching skills, and does
the professor take advantage of such opportunities?
C. Practical Problems in Evaluating Clinical
Law Teaching
1. The Problem of the "Teaching", "Service", and
"Scholarship" Paradigm in Evaluating Clinical Teachers.
Faculty who do not teach in clinics fail to understand some of the extrinsic
demands of the clinical teacher. The traditional separation of
"teaching", "service", and "scholarship" as an
evaluation device is often not a helpful construct when evaluating a clinical
educator.
a. Service as Interconnected to Clinical Teaching
The concept of "service" in the typical law school setting involves
the faculty member's work on law school committees, perhaps a university
committee or two, and perhaps some limited involvement in a community-based
group or work in a professional organization such as the AALS or ABA. Untenured
faculty members are counseled to limit their "service" activities to
gain more time to work on scholarship and teaching. Such advice is not useful
for most clinical law teachers.
[*511] The clinical law professor is required to be an active
member of the practicing bar. That statement bears repeating, with an emphasis
on the word "required." While other law professors might choose to
practice law, the clinical law professor practices law as a requirement of the
position. The clinician is a member of the bar with special duties that arise
because of clinical teaching. These special duties arise from the reciprocation
of the clinician's need to keep up with developments in law practice
specialties and the profession's need for input gleaned from the experiences of
clinical law professors.
While there are a number of different ways to accomplish the first goal of
keeping up with developments, most of them involve frequent interactions with
other lawyers, judges, community advocates, and so on. Because most clinics
represent indigent clients, interaction with other practitioners - often legal
services or public defender attorneys - is vital. Unlike much of doctrinal law,
the knowledge most clinical law professors must have includes a wide array of
local practices and customs, and cannot be gleaned solely (or even primarily)
by reading appellate cases. n50 Consequently, as first-hand observers of local
legal systems, clinical teachers have a lot to offer community advocates to
help improve local practices. The new clinical teacher, especially one new to
the locale, will have to engage in more networking than the experienced
clinical teacher initially. Thus, advising the new teacher to avoid such
"service" commitments is bad advice. As the clinician gets his or her
bearings, he or she can begin to include students in some of the community
networking, thus enriching the experiential component for the students and
sometimes, although not always, reducing the individual time commitments of the
clinical teacher.
Therefore, if non-clinical faculty members wonder why clinical faculty engage
in so much "service," the answer usually is "they're doing their
job." This sort of networking usually leads to involvement in local bar
task forces, committees, advisory boards, boards of directors, and the like.
Such involvement in turn leads to better clinical teaching, because the
clinical teacher and the clinical law office develop in light of law practice
developments around them. Faculty involvement also affects the attitudes of the
bench and bar toward the clinical program and its students, and helps determine
whether local practitioners and judges see clinicians as active members
assisting in the resolution of local problems or instead see them as outsiders
"using" the system for the benefit of the school.
b. The Role of Clinical Scholarship in Clinical Teaching
A second misconception about clinical teaching involves the role of
scholarship. While clinical teachers as a group are prolific scholars, the
challenges involved in producing written scholarship of a particular type are
daunting. Some of those challenges include, but are not limited to:
1) Scheduling
[*512] 2) Caseload coverage problems
3) The challenge of learning the clinical teaching methodology
4) Tackling problems not addressed by "traditional" scholarship
5) Not learning the unwritten rules about scholarly writing and
6) Political battles surrounding the clinic.
i. Scheduling
Many law professors have heavy workloads. Few law professors have as many
weekly appointments as clinical law teachers do. The typical clinical law
professor's week may involve: approximately 8 hours of one-on-one supervision
meetings with students; about three hours of classroom instruction; between one
and three court appearances (this varies depending upon the type of clinic and
the time of the semester); between two and twenty hours of additional student
supervision on casework, depending upon the type of clinic, the time of the
semester, and whether there is an exceptionally active case pending that week;
between one and three hours of law school committee meetings; between one and
three lunch meetings with lawyers, judges, community groups, task forces and
the like; numerous small interruptions by telephone and in person from
students, clients (where no student is currently assigned or if the student is
away), judges, attorneys, colleagues, the Dean, office staff, non-clinic
students and the general public seeking legal advice. It is not difficult to see
why it is hard to schedule blocks of time to work on scholarly writing. Some
schools have acknowledged this plight by requiring less quantity of scholarly
writing from clinical faculty, by granting clinical faculty release time to
write, by extending the time during which scholarship must be produced, or by
lessening the number of clinic responsibilities during the pre-tenure period.
ii. Caseload coverage
While most law faculty take a break between semesters, clinical faculty
typically cover client emergencies. I have attended court hearings just before
and just after Christmas almost every year that I have taught in a clinic, even
when I was a tenure-track law professor. Students are typically away for a
little over a month, and once they have completed their course requirements,
someone has to attend to client needs. Emergency client needs can be especially
time-consuming. These needs must be met while preparing a syllabus and
materials for the upcoming semester. Summer break presents similar problems,
except that it usually lasts longer than the period between breaks.
Additionally, during breaks there are a multitude of office tasks that must be
accomplished, such as updating the procedural manual, upgrading the computers,
closing cases, tabulating statistics, preparing for a new set of intake
interviews and so on.
Some clinics hire a staff attorney or pay a contract attorney to cover cases
over breaks. While these are helpful solutions, they also present transition
problems and raise some troubling questions about quality of client
representation. Finding blocks of time to produce scholarship is difficult
during these break times.
[*513] iii. Tackling Problems Not Addressed by
"Traditional" Scholarship
Much of the day-to-day work of the clinic is in trial courts, administrative
hearings, and mediation rooms. Clinicians often focus their scholarly work on
these types of process issues: how do these sorts of systems work, how should
they work, how can you teach these processes to new lawyers? Relatively fewer
clinicians work in appellate courts. Consequently, analysis of appellate cases
is less of a focus.
Finally, clinicians do important work that is practically oriented and this
type of work fosters less attention from traditional faculty. A clinical
teacher might spend two years working on a local commission and help produce
tangible change in a local practice or system, but this work is not always
considered scholarly. Or, a clinical teacher might write about one small aspect
of a law that has a profound effect on client representation at the trial
level. More attention should be paid to this sort of scholarly activity which
produces tangible change in the law.
iv. Not Learning the Unwritten Rules about Scholarly Writing
Law professors often come from the ranks of law review participants when they
are in law school. Some clinicians also come from those ranks, but a number of
clinicians come from other types of practice backgrounds. They may not
understand some of the "unwritten rules" about law review articles.
n51 Choices that may come instinctively to those with a different type of
academic background may not even be considered by some clinicians. Decisions
about what topic to choose, what is the proper mix of abstract theory and
concrete application or whether to write in an advocacy style or a more neutral
style are all affected by one's perspective. Moreover, when clinicians attempt
to produce more doctrinal or more neutral scholarship, their product may not
reflect their best strengths. n52 If a tenuring faculty has unwritten rules
about what they expect [*514] to find in a scholarly piece, they
should be very explicit about what those rules are, if unable to broaden their
definition of scholarship.
2. Practical Problems in Assessing the Clinical Teachers Overall Work
Traditional methods for reviewing faculty may not work when reviewing clinical
teachers. Unlike a classroom teacher whose contact with students consists of
written materials, class discussion or lecture, and perhaps e-mail exchanges,
the live-client clinical faculty member and the extern supervisor may interact
with students on a daily basis by teaching and advising. Most of clinical
teaching takes place outside the classroom. Moreover, the classroom is often
used as a place to allow students to offer advice to each other, to raise
issues or problems, or to perform exercises, small group workshops or case
rounds. The classroom component is used to accomplish different objectives for
the clinical teacher and is less likely to involve significant presentations by
faculty. Thus, observation of classroom activities is a woefully inadequate way
to evaluate most clinical teaching.
The problem then becomes, how does a faculty evaluate clinical supervision?
Even if one understands what qualities make a good clinical supervisor, there
are several practical problems. Some of those problems include:
a. One supervision session does not capture the whole
b. Client confidentiality
c. Student privacy
d. Tendency to focus on the wrong things
a. One Supervision Session Does Not Capture the Whole
First, it is difficult to capture the essence of clinical teaching by observing
a single supervision session, a single court appearance, a single class, or a
single case round. Like the stitches in a quilt, over a semester or yearlong
program a pattern emerges, but if you magnify a section of the stitches the
pattern is not obvious. One supervision session, one class, one performance in
court is only a small piece of the whole. This is because every task builds
upon some other task in the clinical setting. To understand the conversation in
a supervision session, one would need to understand the underlying information
in a case, know what work the student has or has not completed to date, observe
written materials the student has researched or written, what previous
discussions the student has had with the supervisor, and understand the
universe of possible actions that might be taken. One also needs to have a
sense of what the student is doing outside of supervision, class or court.
Having said this, clinical professors should not be immune from review, and in
the final section I will offer some suggestions for how reviews might take
place.
b. Client Confidentiality
[*515] In a live-client clinic course, the faculty member and
student spend much time discussing clients, both in supervision and in class.
Candid assessments of real people's lives--their strengths and their
shortcomings--are essential in lawyering. People outside the law firm have no
business hearing these sorts of discussions. It is inappropriate for a
discussion of this nature to be videotaped and shared with a wide range of
faculty who are not a part of the law firm. There are few ways to resolve this
problem. One possibility is to strip the discussion of any facts, strategies or
tactics specific to a particular client. The obvious downside to this approach
is that the discussion is not representative of a real supervision session.
Another strategy would be to submit tapes of supervision sessions with clients
whose cases are resolved, and who have signed a waiver of confidentiality. The
downsides here are that the supervision sessions may be old and not
representative of current teaching, and that the waiver may not be an appropriate
request of an indigent client. The best approach is to have an experienced
clinical faculty member--someone who is a member of the clinical
"firm"--sit in on supervision meetings with the faculty member under
review. The experienced clinician is likely to have a better sense of what
makes a good clinical teacher, and the client is protected. n53
c. Student Privacy
Much of student supervision involves intensely private, frank discussions about
a student's strengths and weaknesses. Moreover, students in both live-client
clinics and externship supervision often make personal disclosures or react
strongly to clinical experiences. The relationship is such that the supervisor
sometimes needs to coach the student on how to deal with unpleasant moral or
values issues, the intrusion of personal crises on the student's work life and
so on. These sorts of discussions often serve as an undercoat to later
conversations about professional work. Such candid conversations cannot take
place nor should they if the supervision is being video-taped or even visited.
Therefore, other faculty should know that they are not necessarily hearing a
full or complete conversation.
d. Tendency to Focus on the Wrong Things
The bottom line is, non-clinical faculty members need to be sensitive to the
difficulties of fully evaluating the entire clinical teaching process. Although
not a perfect analogy, one can view the clinical teaching process much like the
clinical learning process: it requires that the professor develop a plan for
the course, engage in the experiential phase of daily strategy and development
[*516] sessions, and later reflect upon the experience to improve
it. Faculty who are not members of the clinical law firm should have wide
latitude in reviewing the first and third stages of the teaching process:
planning and reflection. Reviewing faculty can examine written materials, such
as syllabi, handouts, office manuals and the like. They can observe classes
that do not involve discussions of clients. They can observe interaction with
students that do not involve discussions of clients or private student issues.
They can ask the faculty to evaluate their course and discuss with the faculty
member under review how they conduct the experience phase. However, when it
comes to reviewing the performance phase, deference should be given to
experienced clinicians who can more gently sit in on a variety of supervision
sessions, clinic student interactions, and court appearances to determine the
quality of the supervision taking place.
IV. CONCLUSION
While clinical professors share many common goals, there are many, many
differences in style, approach, subject matter, and method among clinical law
professors. These differences should be welcomed. In fact, many clinical professors
continue to vary their own teaching styles depending upon their interests and
needs and those of their students. It is important for those reviewing clinical
teaching to understand the methods used by clinical teachers and to embrace a
wide range of different approaches while helping those professors achieve a
high level of teaching quality.
[*517] APPENDIX
Check-list of Questions to Consult When Reviewing the Work of a
Clinical Law Teacher
Introductory Goals of the Course
1. Ask the professor to state in one paragraph the major goals of the
course: What is the professor trying to accomplish? By the end of the course,
what does the professor hope the student will know better than that student
knew at the beginning of the course? This knowledge might be substantive (e.g.,
learning poverty law, children's rights law, etc.), process-oriented (e.g., how
to research a particular way, how to analyze a statute) dedicated to learning a
specific skill (e.g., how to draft a pleading, how to represent a client in a
settlement conference, how to work with people from diverse backgrounds), based
on understanding broader issues of justice or equality (e.g., how to analyze
access barriers in a local court system, how to provide legal assistance to
underserved populations), or related to the acquisition of professional
self-awareness (e.g., understanding how well one communicates with a client or
collaborates with colleagues).
2. Why are these goals important? Why are they more important than other
goals the professor might have chosen?
3. How does the professor hope to achieve these goals?
What am I Reviewing?
1. Which aspects of clinical teaching am I being asked to review (e.g.
student supervision, classroom skills, overall program design)?
2. To what extent has this particular clinical teacher played a role in the
aspect(s) I have been asked to review?
Developing an Action Plan
1. What are the professional skills or values the students are expected to
learn?
2. Is the student required to engage in a planning process that focuses on
those skills or values?
3. Is the student required to create the plan singly, or as a member of a
team of students?
4. Is the student provided sufficient guidance to create a plan that can
lead to appropriate performance of the skill or value in question?
[*518] 5. Is the student provided some theoretical framework,
either before or after the initial planning, which enables him or her to
understand the range of issues involved in planning to implement the skill or
value in question?
6. Is the student given an opportunity to discuss the action plan in
writing, in one-on-one supervision sessions, in small group "case
rounds" or in class?
The Experience Component
1. Is the student required, as a result of the experiences provided, to
practice the skills and make choices about professional values that are the
focus of the course?
2. Is the student engaging in the primary lawyering tasks, singly or in
pairs or small groups? If not, has the professor consciously chosen an
alternative model and do the student's experiences match the chosen model?
3. Does the student have adequate support to engage in relevant, high
quality lawyering tasks?
4. Has the clinical professor established an experience that enables a
student to focus on the relevant skill and value choices in a way that
demonstrates the professor has planned how the students will interact with
local judicial or administrative legal systems?
5. Is the student presented with experiences that are complex enough to be
interesting without being overwhelming or unattainable?
6. Is the student given the right number of experiences? Enough to allow
him or her to practice the focused skills, but not so many he or she cannot
perform them well?
Reflection
1. Is the student required to think about how well his or her action plans
worked after experiencing lawyering events?
2. Is the student required to think about how well he or she performed the
action plans that were developed?
3. Is the student required to assess what he or she might have done
differently to effect a different process or result?
4. Is the student allocated an adequate amount of time to discuss critiques
of his or her own performance and/or the performance of partners or colleagues?
5. Is the student allowed to offer his or her own insights about what is
working and what is not working?
6. Does the clinical professor offer insights about what is working and
what is not working, or about what has happened during the experiences?
[*519] 7. Is the student allowed and encouraged to express
discomfort or other feelings about moral, cultural, systemic or behavioral
aspects of the experience; does the faculty member offer assistance in helping
the student process these feelings in a compassionate yet analytical manner?
8. If a student exhibits particular problems, are they addressed in a
timely, direct fashion and is the student provided help in remedying those
problems?
Temporal concerns
1. Is the student provided some sort of explanation up front about how the
course operates? Is the methodology understandable to the student?
2. Does the student have sufficient context - substantive law, procedure,
forms or office mechanics - for the student to be able to practice the targeted
skills or apply professional values?
3. Is the student given opportunities to assume increasing responsibilities
as the semester progresses?
4. Do changes in the nature of interactions between the supervisor and the
students reflect an identified continuum of professional growth and learning?
Methods Used
1. What teaching methods does this clinical professor use in this course?
2. Do the methods fit the goals?
3. Is the professor's skill in the methods she or he has chosen appropriate
for her or his level of teaching experience?
4. Is the clinical professor awarded opportunities to attend clinical
teaching conferences or otherwise develop his or her clinical teaching skills,
and does the professor take advantage of such opportunities?
FOOTNOTES:
n1 Associate Professor of Law, Thomas M. Cooley Law School. She was admitted to
practice in Indiana in 1982 and practiced family law (among other areas) in
Indiana from 1982 until 1993. She then practiced law in Ohio from 1993 until
2000 and admitted to practice law in Michigan in September, 2000.
The author thanks Robert Dinerstein, David Chavkin, Don Peters, Marjorie
Russell, Maurice Munroe and Dennis Cichon for their helpful comments on earlier
drafts of this piece. Their comments demonstrated, among other helpful
insights, just how complex and varied clinical teaching is, and I have
attempted to incorporate that insight into this piece. Any defects in that
regard are solely mine. The author also thanks Sharon Bradley, Research
Librarian, for her assistance. This article is dedicated to Jeanne Charn and to
the memory of Gary Bellow, who always challenged me to raise the quality of my
own work and not to be afraid to ask hard questions about that work.
n2 While I am not aware of any studies, statistics or reports about the
composition of promotion, retention or tenure review committees, I have spoken
to a number of clinical educators over the past decade. Based on anecdotal
evidence, it appears to me that primarily non-clinical law professors serve on
promotion, retention and tenure committees of clinical professors on unified
tenure tracks; a minority of non-clinical law professors serve on similar
committees for those on clinical tenure tracks, and a mixture of the two
generally serve on such committees for those on long or short-term contracts.
However, practices are highly variable by law school and there is no hard data
related to the composition of such committees. The AALS Section on Clinical
Legal Education (hereafter "clinic section"), jointly with the
Clinical Legal Education Association (hereafter "CLEA"), maintains a
database of clinical law professors. Entry into the database is purely
voluntary, so the numbers collected reflect only a portion of clinical legal
educators nation-wide. On May 3, 2001, the clinic section and CLEA counted 1327
full-time legal educators who teach either a live-client or externship course.
Of those 1327, 677 chose to provide information about their law school status.
Two hundred ninety-nine are tenured or tenure-track, 52 are clinical tenured or
clinical tenure-track, 155 are on long-term contracts, 170 are on short-term
contracts, and the remainder are emeritus, visitors or have some other status.
These figures were provided to me by the section treasurer, David Chavkin, who
maintains a database of members of the AALS Section on Clinical Legal Education
and of the Clinical Legal Education Association (CLEA), by e-mail on May 3,
2001.
n3 Some of the earliest written explications of clinical legal education were
published in reports by the Council on Legal Education for Professional
Responsibility (CLEPR), (see e.g. "Working papers prepared for CLEPR
national conference, Buck Hill Falls, Pennsylvania, June 6-9, 1973, Council on
Legal Education for Professional Responsibility, 1973), and the AALS/ABA
Guidelines for Clinical Legal Education (1980 published by AALS and ABA). For a
very useful starting point for reading about clinical legal education see J.P.
Ogilvy & Karen Czapanskiy, Clinical Legal Education: An Annotated
Bibliography Special Ed. No. 1 CLINICAL L. REV. Spring 2001 and at J.P.
Ogilvy et al., Clinical Legal Education: An Annotated Bibliography (second
edition): The Czapanskiy Bibliography (visited Feb. 22, 2002)
<http://www.law.umaryland.edu/facpages/kczapanskiy/Czapanskiy_bibliog.pdf>.
Additionally, the Clinical Law Review, a peer-review journal published
semi-annually, (sponsored by Clinical Legal Education Association, New York
University School of Law, and Association of American Law Schools), is entirely
devoted to scholarship about clinical legal education. Its first edition was in
1994. The Thomas M. Cooley Journal of Clinical and Practical Law (Thomas M.
Cooley Law School) publishes additional scholarship about clinical teaching.
Texts such as GARY BELLOW & BEA MOULTON, THE LAWYERING PROCESS: PREPARING
AND PRESENTING THE CASE (1978), ALEX J. HURDER ET AL., CLINICAL ANTHOLOGY:
READINGS FOR LIVE-CLIENT CLINICS (1997), PHILIP G. SCHRAG & MICHAEL
MELTSNER, REFLECTIONS ON CLINICAL LEGAL EDUCATION (1998), and J.P. OGILVY ET
AL., LEARNING FROM PRACTICE: A PROFESSIONAL DEVELOPMENT TEXT FOR LEGAL EXTERNS
(1998), offer further valuable information about clinical teaching methods.
n4 For many years, the AALS clinic section has requested and the AALS has sponsored
an annual conference or workshop in addition to clinic section programming held
at the AALS Annual Meeting. Additionally there are a variety of regional
clinical teaching workshops sponsored by the AALS clinical teaching section and
by CLEA. Increasingly, there are international clinical conferences, for
example, the Global Alliance for Justice Education (GAJE), sponsored such a
conference in India in December, 1999.
n5 The focus of this article is on clinical teaching; while there is a brief discussion
of evaluation of service and scholarship performed by clinical law professors,
this article does not systematically address how to evaluate clinical service
or scholarship.
n6 For a discussion of some of the differences in the in-house and the externship
course, see Robert Condlin, Learning from Colleagues: A Case Study in the
Relationship Between 'Academic' and 'Ecological' Clinical Legal Education,
3 CLINICAL L. REV. 337 (1997); Robert F. Seibel & Linda H. Morton, Field
Placement Programs: Practices, Problems, and Possibilities, 2 CLINICAL L.
REV. 413 (1996), and Norman Fell, Development of a Criminal Law Clinic: A
Blended Approach, 44 CLEV. ST. L. REV. 275, 284-91 (1996).
n7 See information from AALS clinic section and CLEA database, supra
note 2.
n8 There is some information available on the Internet about how to plan a law
school class. See, e.g., Vernellia R. Randall, Planning for Legal
Education (last modified June 13, 2000)
<http://www.udayton.edu/aep/legaled/planning> and Barbara Glesner Fines, Teaching
Law-General Resources for the Teaching of Law (visited Feb. 22, 2002)
<http://www.law.umkc.edu/faculty/profiles/glesnerfines/bgf-edu.htm>.
Additionally, the Gonzaga Institute for Law School Teaching publishes a
newsletter on-line titled The Law Teacher (last modified on Dec. 1, 2001)
<http://law.gonzaga.edu/ilst/newsltr.htm>. However, these resources focus
more on ideas for improving law school teaching rather than on evaluating law
school teaching. Moreover, many of the underlying references cited in these
works are based on undergraduate college, not law school, teaching.
n9 Specifically, clinical classes and supervision sessions rarely focus on one
student's exposition of and analysis of a small doctrinal point for an extended
period of time, as might be expected in a Socratic law course. Most clinical
professors assume that students have devoted considerable time to honing legal
analysis skills in this manner, and other skills and values learning often take
priority. Additionally, clinical teachers are more prone to push students to
reaching conclusions or to discussing the consequences of reaching certain
conclusions because real-life cases require that actions be taken. Finally,
clinical teachers are much more likely to devote a significant portion of the
course to evaluation: of the consequences of actions taken, of relationships in
the case, and so on, than non-clinical courses.
n10 See generally Michelle S. Jacobs, Legitimacy and the Power
Game, 1 CLINICAL L. REV. 187 (1994) (examining the idea that clinicians of
diverse backgrounds must tailor supervision relationships in ways that reflect
diverse perceptions of non-white or female clinical professors.
n11 Some articles that relate to gender, race and ethnicity issues in law school
teaching include, Lani Guinier, et al., Becoming Gentlemen: Women's
Experiences at One Ivy League Law School, 143 U. PA. L. REV. 1 (1994);
Okianer Christian Dark, Incorporating Issues of Race, Gender, Class, Sexual
Orientation, and Disability into Law School Teaching, 32 WILLAMETTE L.
REV. 541 (1996); Angela Mae Kupenda, Making Traditional Courses More
Inclusive: Confessions of an African American Female Professor Who Attempted to
Crash All the Barriers at Once, 31 U.S.F. L. REV. 975 (1997); Pamela J. Smith,
Teaching the Retrenchment Generation: When Sapphire Meets Socrates at the
Intersection of Race, Gender, and Authority, 6 WM. & MARY J. WOMEN
& L. 53 (1999).
n12 Professor Don Peters, Address at the Midwest Clinical Teaching Conference
(Fall 1996). I am indebted to Professor Don Peters of the University of Florida
for sharing his rendering of this structure of clinical education. He sent me
copies of handouts he uses that illustrate this three-part process, see
chart infra Part II. C. Others have described a similar process. See,
e.g., William P. Quigley, Introduction to Clinical Teaching for the
New Clinical Law Professor: A View From the First Floor, 28 AKRON L. REV.
463, 477 (1995) and Task Force on Law Schools and the Profession, Legal
Education and Professional Development -- An Educational Continuum, 1992
A.B.A. SEC. LEGAL EDUC. & ADM. B. 243 (known as the "MacCrate
Report").
n13 Interview with Marjorie Russell, Professor at Thomas M. Cooley School of
Law (date). Professor Marjorie Russell suggested to me that the clinical
teacher's planning and implementation of a clinical course is parallel to a
clinical student's course experience. That is, the clinical teacher has a
theoretical construct (action plan) in mind that includes the course goals and
how they will be achieved, the teacher implements that plan through classes,
supervision sessions and other methods, and the clinical teacher evaluates how
well the course has worked before offering the course again. It is helpful to
think about the teaching experience in this way, because it makes it easier to
discuss later in the paper which aspects of the course can be evaluated by
those outside the clinical firm and which cannot.
n14 See Frank S. Bloch, The Andragogical Basis of Clinical Legal
Education, 35 VAND. L. REV. 321, 328 (1982).
n15 Many clinical law professors introduce their students to concepts such as
the Myers-Briggs Type Inventory or Kolb Inventory to make students aware of
these differences in learning preferences. See generally Don Peters
& Martha M. Peters, Maybe That's Why I Do that: Psychological Type
Theory, the Myers-Briggs Type Indicator, and Learning Legal Interviewing,
35 N.Y.L. SCH. L. REV. 169 (1990). Some clinicians administer a learning
inventory to enable them and their students to tailor the learning experience
more closely to optimal learning for the students in the class. These
clinicians administered the Myers-Briggs Type Indicator to facilitate
development of collaborative working skills. The secondary objective was to
enhance acquisition of interviewing and negotiation skills. Id. at
174.
n16 See generally MALCOLM S. KNOWLES, THE ADULT LEARNER, (1990); CARL
ROGERS, FREEDOM TO LEARN (1979).
n17 DONALD A. SCHON, THE REFLECTIVE PRACTITIONER, (1983).
n18 Id. See also Donald A. Schon, Educating the Reflective Legal
Practitioner, 2 CLINICAL L. REV. 231 (1995); Gary S. Laser, Educating
for Professional Competence In the Twenty-First Century: Educational Reform at
Chicago-Kent College of Law, 68 CHI.-KENT L. REV. 243 (1992).
n19 Professor Peters calls this stage "mapping". I prefer to use the
term "action plan" because I believe the word "plan" better
captures the combination of theory, practical knowledge and research that goes
into this stage.
n20 It is impossible to cover all aspects of lawyering in one course.
Clinicians choose which skills or values they want to emphasize in a given
course. A discussion of these choices will occur later in the paper, but it is
important up front to identify which skills or values the professor is
attempting to teach before evaluating how well the professor teaches those
skills or values. See discussion infra Part 2 (Implementing
an Action Plan Through a Structured Experience).
n21 Because of the vast differences in clinical program goals, subjects and
methods, there is no short list of texts that might be used. Some examples of
textbooks that one might find in a clinical course would include DAVID A.
BINDER ET AL., LAWYERS AS COUNSELORS: A CLIENT-CENTERED APPROACH (1991) [hereinafter
BINDER, BERGMAN & PRICE]; ROBERT F. COCHRAN ET AL., THE COUNSELOR-AT-LAW: A
COLLABORATIVE APPROACH TO CLIENT INTERVIEWING AND COUNSELING (1999); BLOCH, supra
note 14; ALBERT J. MOORE ET AL., TRIAL ADVOCACY: INFERENCES, ARGUMENTS, AND
TECHNIQUES (1996); GARY BELLOW & BEA MOULTON, THE LAWYERING PROCESS:
MATERIALS FOR CLINICAL INSTRUCTION IN ADVOCACY (1978); JULIE A. NICE &
LOUISE G. TRUBEK, CASES AND MATERIAL ON POVERTY LAW (1997) and practice manuals
such as the text used in the Cooley Law School Sixty-Plus Elder law Clinic,
ADVISING THE OLDER CLIENT (George A. Cooney, Jr. & David L. Schaltz eds.,
1998).
n22 "Client-centered counseling" is a client counseling model
described in BINDER, BERGMAN & PRICE, supra note 21. The model is
characterized by the client playing a strong role in attorney-client
decision-making, and by the lawyer filtering information and alternatives
through empathizing with the client and figuring out how to best serve the true
needs of the client as defined by the client. Id. at 19-23.
n23 DAVID A. BINDER ET AL., LAWYERS AS COUNSELORS: A CLIENT-CENTERED APPROACH
(1991).
n24 See generally Dennis P. Stolle et al., Integrating Preventive
Law and Therapeutic Jurisprudence: A Law and Psychology Based Approach to
Lawyering, 34 CAL. W. L. REV. 15 (1997) (describing how therapeutic
jurisprudence and preventive lawyering may affect the lawyer style in specific
legal specializations); THOMAS L. SHAFFER & ROBERT F. COCHRAN, JR.,
LAWYERS, CLIENTS AND MORAL RESPONSIBILITY 44-45 (1994) (describing four models
of lawyering relationships with clients and advocating a model they call
"lawyer as friend," in which the lawyer offers to assist a client in
moral counseling as part of the legal counseling process).
n25 There has been debate over the question of the ethics of using real client
cases for partial skills training. Some argue that a clinic that follows such a
model sets up the client for poor representation if the clinic students only
"jump" into the middle of a case, leaving some other attorney to
conduct the rest of the representation. These are not easily resolved issues,
and are legitimate questions one can ask about course design, if the person
under review is in fact responsible for overall course design.
n26 There is not consensus about which of these models is better or worse, or
even whether one is better or worse.
n27 The Mandel Legal Aid Clinic at the University of Chicago advocates this
approach; a variety of professors from that program have presented examples of
these types of forms, which they call "protocols," at numerous
clinical teaching conferences.
n28 I collaborated for one year with Professor Kara Stein, a graduate of the
CALS fellowship program at Georgetown. Professor Stein indicated that students
in the CALS program were required to draft all documents without the use of
checklists or forms, but that the students had very low caseloads and cases
that allowed a lot of time to research. At Indiana University in Indianapolis,
where I taught between 1988 and 1993, we provided form pleadings for certain
types of cases (e.g. evictions) and not others (e.g. family law) based upon our
calculation of time, difficulty of research and need for uniformity.
n29 Some good examples of the kind of dialogue that might occur are found in
Nina W. Tarr, The Skill of Evaluation as an Explicit Goal of Clinical
Training, 21 PAC. L.J. 967 (1990) and Ann Shalleck, Clinical Contexts:
Theory & Practice in Law and Supervision, 21 N.Y.U. REV. L. & SOC.
CHANGE 109 (1993-1994).
n30 Anecdotally, most clinical teachers I have spoken with indicate that they
schedule weekly meetings with students, but that they often consult with the
students at times other than the weekly meetings.
n31 At the AALS Clinic Conference in 1999 in Lake Tahoe, Elliott Milstein and
Alan Minuskin co-facilitated a session on case-rounds in clinics. Case-rounds
are conducted in a variety of ways, but the two most common appear to be either
a general presentation of a client or case or a targeted approach. In the latter
approach, the teacher might ask the students to present a case that illustrates
a particular theme, such as difficulty in obtaining information or ethical
problems. The students present a case that illustrates the theme to the rest of
the group. Clinicians differed on whether the student should write a synopsis
of the case prior to the case-rounds or simply report orally to the group.
n32 The primacy of the experiential component has been true since the earliest
days of clinical teaching. See, e.g., Anthony G. Amsterdam, Clinical
Legal Education -- A 21st Century Perspective, 34 J. LEGAL EDUC. 612,
615-17 (1984); Gary Bellow, On Teaching the Teachers: Some Preliminary
Reflections on Clinical Education as a Methodology, CLINICAL EDUCATION FOR
THE LAW STUDENT 374, 377-78 (1973); Jerome Frank, Why Not
A Clinical Lawyer-School, 81 U. PA. L. REV. 907, 916-21 (1933).
n33 This article uses the language of skills and values as a way of explicitly
accepting clinics with technique-oriented goals as well as clinics with social
justice oriented goals, and all blends of the two. The term "skills and
values" is, I believe, commonly accepted in the legal academy, as a
post-MacCrate Report phenomenon. The original clinical programs were
unabashedly founded with explicit social justice and law reform goals that were
at least as important as the skills and values training of law students. See
David Barnhizer, The University Ideal and Clinical Legal Education, 35
N.Y.L. SCH. L. REV. 87 (1990); Jon C. Dubin, Clinical Design for Social
Justice Imperatives, 51 SMU L. REV. 1461, 1463-66 (1998).
n34 See generally Gary S. Laser, Educating for Professional
Competence in the Twenty-First Century: Educational Reform at Chicago-Kent
College of Law, 68 CHI.-KENT L. REV. 243, 244 (1992) (stating that
students must learn the "art of lawyering" in order to apply legal
doctrines, skills, and values in the real world).
n35 See Laser, supra note 18, at 262, 279-80.
n36 See, e.g., Minna J. Kotkin, Reconsidering Role Assumption in
Clinical Education, 19 N.M. L. REV. 185, 193-94 (1989).
n37 See Tarr, supra note 29, at 972; Kotkin, supra
note 36, at 196-96; Bellow, supra note 31, at 386-87. But see
Condlin, supra note 6 (suggesting that the experience stage is the
major source of learning) (citing Brook K. Baker, Beyond MacCrate: The Role
of Context, Experience, Theory and Reflection in Ecological Learning, 36
ARIZ. L. REV. 287 (1994)); Stephen T. Maher, The Praise of Folly: A Defense
of Practice Supervision in Clinical Legal Education, 69 NEB. L. REV. 537
(1990).
n38 I would like to thank Professor Don Peters for contributing this chart.
n39 There is a rich scholarship on evaluation and feedback. One good source of
that scholarship is contained in Peter A. Joy and Catherine F. Klein, Nuts
and Bolts of Evaluation and Feedback of Students: A Selected Bibliography on
Student Evaluation and Justice Issues (visited Feb. 22, 2002)
<http://www.aals.org/clin00_joy.html>.
n40 According to the NITA teacher training I attended in 1989, teachers of
trial skills were instructed to discuss no more than three issues raised during
a student's performance. It was said that people are not able to learn from
reflection if overwhelmed by too many critical issues, and that most people
could not learn from the experience at all if confronted with more than three
issues at a time.
n41 See generally Shallack, supra note 29, at 137 (provides examples of
possible supervision interactions); Tarr, supra note 29, at 973 (saying
students must be skilled in self-evaluation because it gives them independent
reponsibility for learning, which reinforces the concept that they are
responsible for their own actions).
n42 GARY BELLOW & BEA MELLOW, THE LAWYERING PROCESS: MATERIALS FOR CLINICAL
INSTRUCTION IN ADVOCACY (1978).
n43 See Bellow, supra note 32, at 390-94; see also
GARY BELLOW & BEA MOULTON, THE LAWYERING PROCESS: NEGOTIATION 248-52 (1981)
(discussing tensions including self-consciousness, responsibility, and
perceived status).
n44 See Fran Quigley, Seizing the Disorienting Moment: Adult
Learning Theory and the Teaching of Social Justice in Law School Clinics,
2 CLINICAL L. REV. 37, 53-54 (1995).
n45 See id.
n46 See id.
n47 See Peter Toll Hoffman, The Stages of the Clinical Supervisory
Relationship, 4 ANTIOCH L. J. 301, 302-03 (1986) (describing the changes
of the supervisory relationship between student and teacher over time).
n48 E-mail from Ann Shalleck, Professor Washington College of Law at American
University to law clinic listserv. Professor Shalleck stated that in her
clinic, students who represent victims of domestic abuse devise the office
procedures as part of the course.
n49 Some interesting examples of student evaluation of clinical experiences
(and how that evaluation differs at times from the evaluation of the clinical
professor) can be found in Angela Stamm and Marla L. Mitchell, Teaching the
Law Student to Become a Lawyer: How Personal Perceptions Form Realities and
Impact Our Role as Lawyers, 2 T. M. COOLEY J. PRAC. & CLINICAL L. 135
(1998), and a pair of companion articles include, Robert Rader, Confessions
of Guilt: A Clinic Student's Reflections on Representing Indigent Criminal
Defendants, 1 CLINICAL L. REV. 299 (1994) and Abbe Smith, Carrying on
in Criminal Court: When Criminal Defense is Not So Sexy and Other Grievances,
1 CLINICAL L. REV. 723 (1995).
n50 See generally Andrea Seielstad, Unwritten Laws and Customs,
Local Legal Cultures, and Clinical Legal Education, 6 CLINICAL L. REV. 127
(1999) (explaining that unwritten rules and local customs, like relationships,
power dynamics, and shared understandings between certain participants play a
role in American judicial systems).
n51 Some of these rules are actually written down, albeit in articles not
primarily geared toward the clinical law professor. For example, in the recent
article by William R. Slomanson, Legal Scholarship Blueprint, 50 J.
LEGAL EDUC. 431 (2000), there is no specific reference to clinical scholarship.
However, a clinical law professor who is required to write for promotion or
tenure purposes would be advised to read such an article, in addition to the
articles cited by Slomanson. There are additionally a number of articles that
specifically address the nature of clinical scholarship, especially the first
issue of the Clinical Law Review, which consists entirely of articles devoted
to the topic of the nature of clinical scholarship. See also Peter A.
Joy, Clinical Scholarship: Improving the Practice of Law, 2 CLINICAL.
L. REV. 385 (1996). A clinical law professor who only reads those articles may
not be aware, however, of how clinical scholarship may be viewed by
non-clinical evaluators.
n52 See generally William P. Quigley, Introduction to Clinical
Teaching for the New Clinical Law Professor: A View from the First Floor,
28 AKRON L. REV. 463, 465-471 (1995) (chronicling the history of clinical legal
education, including a description of the first schools to employ the method).
n53 I have heard it said that non-clinical faculty do not trust clinical
faculty to provide honest review. In addition to the insulting nature of the
comment, in my experience, it is also untrue. I have found clinical faculty to
be quite rigorous in their review of clinical teaching. I was once advised in a
promotion process to have a non-clinician review an article I wrote about an
aspect of clinical teaching. I thought that would be rather like having a
corporations article reviewed by someone other than a person who taught
corporations. The implication was that clinicians are dishonest, and the rest
of the legal academy is honest.