Monash University Faculty of Law Clinical Supervision Manual
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1 Monash University Faculty of Law Clinical Supervision Manual © Ross Hyams 2014
2 Contents Chapter Page 1. Understanding the educational objectives of the clinic and 3 teaching towards them 2. Balance between needs of clients and educational 4 experience for students 3. Teasing out moral and ethical issues with students 5 4. Creating a ‘safe’ environment for ‘stoopid’ questions 5 5. Discussion of professional issues with students 6 6. How to motivate and maintain enthusiasm 9 7. Team work – how to build up strong student teams 10 8. Teaching students non-legal skills – time management, 12 communication, organisational skills 9. Learning styles – how to take into account students’ 14 different levels of skill, knowledge and understanding 10. Appropriate student/supervisor relationships 15 11. Working with other supervisors 16 12. How to discipline 17 13. Feedback – informal 18 14. Formal feedback (the mid semester assessment) 21 15. Assessment issues 24 16. Keeping good records 24 17. Supervisors’ mental health 25 18. Conclusion 27 - Basic Clinical Bibliography - 28
3 Clinical Supervision Manual 2014 This manual is for the use of new supervisors teaching in the Monash University Faculty of Law clinical program. Specifically, it covers supervisors in the following units: • LAW 5216 Professional Practice • LAW7423 Professional Practice (JD) • LAW 5218 Family Law Assistance Program (Prof Prac) • LAW 5149 Advanced Professional Practice Welcome to clinical supervision! As a new clinical supervisor in the Monash University Faculty of Law clinical program, there are many things to consider, besides a sound knowledge of law and practice. This supervision manual is an attempt to cover various aspects of clinical supervision. It does not, however, hold all the answers - situations may well arise during your supervision that are not covered in this manual. Remember: When in doubt about any aspect of teaching, assessment or supervision, always consult an experienced clinical supervisor or the legal service coordinator who will be more than happy to provide guidance. 1. Understanding the educational objectives of the clinic and teaching towards them A new supervisor must be clear about what the clinical program is attempting to teach students. The supervisor needs to read the unit guide carefully, understand the objectives of the unit and teach to them. Ongoing discussion needs to take place between supervisors regarding the unit objectives. What are the objectives of the clinical unit? Are they still linked to the way the program is being taught and should they be revised? The published objectives of the unit are the yardstick by which the pedagogical results of the clinic are being measured and thus must match the outcomes which the clinical teachers believe are relevant and important. The importance of setting clear objectives cannot be overstated - they must be read and understood by all clinical teachers and followed. For Professional Practice (undergraduate and JD, including FLAP), the objectives of the unit are as follows: Students completing this unit should have acquired 1. the ability to analyse critically legal principles and the legal system in the context of contemporary society; 2. an understanding of the extent to which the law and the legal system meet the needs of the community;
4 3. skills involving judgment, such as the investigation of facts, the recognition of issues, the analysis of problems and situations, the use of tactics and decision-making; 4. skills in oral and written communication required of lawyers, including interviewing, counselling, negotiating, advocacy and drafting; 5. an understanding of professional legal issues of ethics and morality. For Advanced Professional Practice (including the Joint Sexual Assault Clinic and other placement clinics), the objectives of the unit are as follows: Upon completion of this subject students should a. have further developed the personal and communication skills acquired in LAW5216 (Professional practice) to a higher level of sophistication; b. have a good understanding of the principles of law in their chosen area; c. have an understanding of the practical application of the law in their chosen area; d. be able to assess the effectiveness of the law and applicable legal remedies in their chosen area; e. have further developed their ability to work jointly with a professional in another discipline; f. graduate with highly developed skills and recognised expertise in their chosen field. 2. Balance between needs of clients and educational experience for students It must be remembered that clinical legal education takes place in a community legal centre. The client base consists of highly vulnerable, stressed and disadvantaged clients. Whilst community legal centres have a strong ethos of client empowerment and self-help, clients are often very needy and may require a great deal of time and attention. Supervisors need to be insightful about the obvious tension between the needs of the students and the needs of the client and realise that they will sometimes be in conflict. A balance needs to be struck and it depends on how the clinical teaching team views the essential raison d’etre of the clinic. A student may be running six divorce files and thus, accepting instructions for a new divorce matter will not improve the student’s knowledge of family law. However, there is still a client with a need to be serviced. Can the clinic justify the disruption to the client of handing the matter to another student whom the client has not met (perhaps on another session day?) or indeed, of simply refusing the matter, because it will not be pedagogically valuable to a student? Should the clinic make the student work on yet another divorce, on the basis that “service to the client” is paramount and thus the educational value is irrelevant? In the final analysis, the client must not suffer any detriment by being transferred to another student. The supervisor could discuss the question of whether the student can take on the matter so that the supervisor is modelling the consideration of the client’s benefit versus concern
5 for the student. An alternative option might be to ask the client if work on the matter could be delayed for a couple of weeks until the student is free to work on it There are no simple answers to this dilemma and arguably, it must be decided on a matter-by–matter and student-by-student basis. It is quite a common issue and often comes to the fore when students are busy with other aspects of their University studies – exams and deadlines for major essays. Often they are simply having the normal life crises which affect the student demographic – matters relating to health, part-time work, relationships with parents and other loved ones. Supervisors must ask themselves “How fair is it to force more work on a harried and stressed student during the exam period or this time of personal crisis? Will this teach them anything? Will the clinic be doing the client a disservice if the student is stressed and distracted?” Some leniency needs to be given while the students struggle through exams and other work deadlines. It is also patently unfair for one student in a session to be running three files whilst another runs fifteen. On the other hand, constantly tinkering with and re-arranging students’ file loads and transferring clients around is disruptive to both students and clients. 3. Teasing out moral and ethical issues with students Legal service work raises moral and ethical issues on a weekly basis. In the hurry and stress of getting through daily client sessions and weekly file reviews, there often does not appear time for the “luxury” of having in-depth discussions of ethical or moral issues that arise out of the file load. However, to ignore these issues is not only professionally dangerous, it is also educationally irresponsible. Work at the legal clinic is reduced to mere mechanical teaching of procedures and processes if time is not made for more ‘holistic’ and wide ranging discussion of the ethical, moral and social issues which emerge from the files. Supervisors need to be aware of opportunities to raise these discussions with students with the aim of seeking out their views and, if necessary, challenging them. If a client has been charged with his eighth drug offence in five years, what does this say about our medical system and our sentencing regime? What better processes might be put in place to deal with such recidivism? If the student’s response is “Oh, he’s just a hopeless druggie” perhaps this attitude needs to be challenged. How much is it the client’s fault? How much responsibility does the legal system have to ‘cure’ such a person? Has the medical system let him down? This type of matter is ripe for student-supervisor discussion, over and above the mechanical processes of acting in the client’s best interests to achieve a lenient sentence. The other matter is the need for the supervisor to be aware of, encourage discussion about and often resolve ethical issues. Much of this involves modelling ethical behaviour. If, for example, a conflict of interest is possible, it cannot be glossed over, but needs to be discussed with the student and a resolution found. In this way, the clinic is a laboratory for the teaching of legal ethics, in a way that a classroom never can be.
6 4. Creating a ‘safe’ environment for ‘stoopid’ questions Besides the urgent “need to know” factor, clinic encourages curiosity by its many processes and the informal discussions which occur between students and supervisors. It is much harder to engender this sort of curiosity in traditional law teaching with large lecture groups and the very public way in which questions must be asked and responded to by the lecturer. Curiosity and creativity are linked1 and producing creative lawyers is a worthy objective of any law school. Clinic provides an intimate setting for students to ask an endless variety of what they might consider to be ignorant or obtuse questions. Provided that an atmosphere of learning is engendered within the clinic, students have the security to know that no question is ever deemed “stupid” and will be patiently answered by the clinical supervisor to the best of his/her ability. Accordingly, a supervisor should never laugh at or be smug or disdainful about a student’s question, no matter how simple it appears to be. Great patience is needed here, as students will often ask questions which a supervisor believes– a) That the student should simply know the answer to from their previous legal studies. b) That has been taught in the formal classroom element of the clinic (obviously, in this situation the student simply wasn’t listening, didn’t attend, did not understand or cannot apply the information learnt in the classroom to the real life situation before them) c) That the supervisor has already deal with in previous discussions with that student, or indeed, as part of the current discussion! This comes down to developing relationship of trust between the student and supervisor. In this way, a student will ask seemingly facile questions in confidence, trusting that the supervisor will not respond negatively to such questions or belittle the student in any way. Despite the above, the supervisor should (again) answer the question in the simplest way possible, proving examples of its application to the clinical setting, if possible, so it becomes familiar and relevant to the student. This approach will foster an environment of safety for the student to be curious and have that curiosity satisfied by asking further, more sophisticated questions in the future. It may also be appropriate to spend more time with students who continue to ask the same question over and over, or who appear not to be progressing in the unit. Perhaps there are serious issues present which are inhibiting the learning process, or the student has a particular nonchalant or apathetic attitude towards the clinical experience. The supervisor may have to spend some time (in private) with the student, delving into these issues. 1 Batt C & Katz H, ‘Confronting Students: Evaluation in the Process of Mentoring Student Professional Development’ (2003-2004) 10 Clinical Law Review 581 at 597.
7 5. Discussion of professional issues with students Teaching professionalism is a challenge for educators in any course of professional education. It is also often very confronting for students. In legal education, both students and teachers can find the concepts foreign because of the focus on analytical and logic skills and the lack of application to ‘real life’ requirements of legal practice. If clinicians wish to tackle the issue of teaching their students how to behave, rather than simply think, like lawyers, then the discussion needs to also deal with teaching professionalism in a generic sense. Are clinical legal educators committed to teaching students to “act like a lawyer”? What sort of lawyer is meant by this? How do clinicians see the profession and their role within it? Are clinicians teaching students to be litigators, advisers, problem solvers, advocates or resolvers of conflict? Or perhaps all of these? Perhaps clinicians can use the much loved Atticus Finch of “To Kill a Mockingbird” fame as a role model for inculcating a sense of professional responsibility in our students. Atticus is a moral beacon in this novel and single handedly guides his children to virtue in a racist and unjust society, treating them with respect and as semi-autonomous individuals capable of insight and judgment. He attempts to teach them both compassion and tolerance, inviting them to climb inside a person’s skin and walk around in it, in order to understand another’s perspective. He treats everybody with respect regardless of their socio-economic background, skin colour or class. He is courageous and wise and an avid believer in the role of courts as the great levellers of society.2 In many ways, he is the ultimate model of legal professional responsibility. A worthy clinical objective may be to consistently model, inculcate and inspire such professional behaviour in clinic students - but ideological commitment and the appropriate pedagogical tools are required in order to do so. Clinicians need to foster concepts of autonomy, judgment and commitment to ongoing education in their students – as these are the true indicia of a professional: Autonomy - In a clinical setting, the concept of autonomy involves law graduates being able to work independently and be self-directed in tackling and completing tasks without direction or supervision. It requires self-insight into how a project is broken down into sub-tasks and how work loads and time limits are managed. To a certain extent legal educators have an expectation that this is an attribute learnt by law students by the mere fact that they can manage the requirements of studying a law degree. However, it cannot be expected that students will simply learn the skill to act autonomously by implication or osmosis. 2 Dare T ‘”The Secret Courts of Men’s Hearts”, Legal Ethics and Harper Lee’s To Kill a Mockingbird’ in K Economides (ed), Ethical Challenges to Legal Education and Conduct (Oxford, Hart Publishing, 1998) at 43.
8 If it can be accepted that learning is an “active, self-constructed and intentional process”3 then this process can be explicitly assisted by supporting students’ journey towards autonomous learning and action. Black & Deci, writing in the field of science education, describe this as taking the students’ perspective, acknowledging their feelings and providing them with “pertinent information and opportunities for choice, while minimizing the use of pressure and demands.”4 Further, clinicians can promote students’ attainment of autonomy by supporting their intrinsive motivations to learn skills and progress their casework competently – this can be done by being less directional in the approach to problem solving, by encouraging initiative and showing that the tasks that students are undertaking are valued.5 This behaviour can be modelled by student to clients as well. Community legal services strongly promote client autonomy by providing clients with the various options and consequences available to them to solve their legal problem and encouraging the client to take the initiative in the resolution of their matter. Accordingly, students should be discouraged from being directional and authoritative with their clients in the way they interview and run client files. Judgment - Lawyers and other professionals are constantly called upon to make judgments – not only in relation to the tactics and techniques in solving client problems, but also self-judgment: Did I handle that matter well? How could I have done it better? Was I effective in the way I interviewed/negotiated/advocated? Sampford and Blencowe point out that lawyers make judgments on a daily basis for clients on a variety of matters not limited to legal issues.6 This will include judgments relating to time constraints, economic factors and emotional issues such as a client’s ability to cope with litigation and how extended conflict may affect the client’s complicated personal or business relationships. These factors need to be pointed out to students in the way they assist clients to work their way through the options available to them The second aspect of this equation is the skill of self-judgment and reflective lawyering. The best known work on reflective learning by professionals is by Schön who created the term “reflective practitioner”7 In order for student reflection to occur, some basic pre-requisites must be met. Primarily, students must be put into situations which are outside their normal range of 3 Id. 4 Black A E & Deci E L (2000) ‘The effect of instructors’ autonomy support and students’ autonomous motivation on learning organic chemistry: a self determination theory perspective’ 84 Science Education 740 at 742. 5 Stefanou C, Perencevich K, DiCintio M & Turner J ‘Supporting Autonomy in the Classroom: Ways teachers Encourage Student Decision Making and Ownership’ (2004) 39(2) Educational Psychologist 97-110 at 100 6 Sampford C & Blencowe S ‘Educating Lawyers to be Ethical Advisers’ in Economides, Kim (ed), Ethical Challenges to Legal Education & Conduct, (Hart Publishing Oxford 1998) at 319. 7 Schon, D The Reflective Practitioner: How Professionals Think In Action (1983) New York: Basic Books
9 experiences,8 so that they find themselves reacting to a novel situation which, in essence, requires some “de-briefing” and will thus trigger the reflective process. For anyone who has ever worked in a clinical legal environment, it will be obvious that clinic students find themselves in such situations almost on a daily basis. The environment of the clinic itself is usually outside their life experience and presents challenges to them, before they have even had the opportunity to set eyes upon a client. Clinical legal education provides the perfect laboratory for action and reflection. The reflective process can be encouraged in various ways and will often happen as a by-product of clinical work – by informal peer discussion or by the more formal supervisor- lead dialogue. Ongoing commitment to lifelong education - Clinicians are well situated to encourage an understanding in our students that legal education does not cease when they graduate. Clinic is an excellent location to model the commitment to be up to date in law and procedure. It also requires self- knowledge and honesty about areas of knowledge and skills. A professional not only knows what they know, they know what they don’t know and how to go about remedying this lack of knowledge. This applies to both information and skills. A good legal professional understands the limits of their knowledge in specific legal areas. They also have insight into their skills limitations and the honesty and integrity to attempt to remedy their lack of skills by further and ongoing training. It is OK to tell a student that you don’t know the answer to a problem and then lead them through the appropriate avenues to discover a solution. 6. How to motivate and maintain enthusiasm Students will derive much of their enthusiasm for their legal service work from observing the supervisor’s example. If you appear bored or irritable with the work and lazy about your teaching commitments, the students will quickly pick up the message and imitate your behaviour. As a supervisor, it is important to remember that this particular matter might be the 4000th motor vehicle accident you have given advice on in your legal career, but it’s the student’s first and therefore challenging, interesting and even exciting (remember, it may also be the client’s first as well, and dominating their lives in a negative way). It is important to try to remember what it was like for you when you first commenced your legal career – every matter was a challenge; confusing and stimulating. Try to tap that original energy and feed it back to the students. Again, part of this should be your approach to ‘mentoring’ students – even if you find a matter simple and could quite comfortably provide the student with an answer, this is not appropriate clinical pedagogy. It may suit your ego to be the fount of all knowledge, but it does not teach the student self-reliance, 8 Rogers R ‘Reflection in Higher Education: A Concept Analysis’ (2001) 26 (1) Innovative Higher Education 37at 42.
10 research skills or professionalism, or incite their curiosity. Accordingly, you must refrain from just “giving the answer’ – encourage students to find out information for themselves prior to seeking your advice and thus to come to you with a range of suggestions or options as to how the client’s problem may be approached – then workshop the problem with your student, suggesting appropriate lines of enquiry. An example of this is how you would work with a primary school child who says ‘My teacher wants me to find out the capital of Australia”. It’s very simple (and quick) to just tell the student “Canberra”, but the child has learnt nothing, except that they can come to you for easy answers. Rather, it is more appropriate to lead the child through to the answer – “OK, where could we find out – perhaps an atlas?” and then pursue the enquiry to its resolution. This is not paternalistic; it is mentoring, by providing students with the tools to find out answers, not just giving the answers themselves. In this way, the student learns to use the tools for the next problem and becomes increasingly self-reliant. 7. Team work – how to build up strong student teams Students need to be encouraged to view their client in-take day as a team effort. This means that students need to get used to sharing clients, resources, precedents, information and responsibilities. The major benefit of requiring students to collaborate in a clinical setting is bringing together the practical resources of students who have different skills and knowledge bases. Ideally, each student benefits from the other and the client benefits from such collaboration. Further, any conflict between the students can be resolved in a positive and beneficial way for them. Student collaboration can teach students professional autonomy as they learn to make decisions9, without resorting to a dependence on a hierarchy to impose decisions upon them. Because students have diverse life experiences, not only can they develop an insight into their clinical colleagues’ motivations and reasoning processes, the ability of the student to understand and appreciate the client’s experience may also be enhanced.10 Finally, having the support of other students may assist in reducing a student’s anxiety and self doubt in the challenging clinical environment.11 Supervisors need to point out to students that they are part of a team which supports each other’s endeavours. Practical ways that team work is demonstrated is as follows: 1. Clients – even though students are individually responsible for their client’s matters, they need to also accept group responsibility. This may mean seeing a client on behalf of another student if that student is not available. It also means making good telephone notes if another student’s client rings in, and taking responsibility to contact the client’s student if an urgent response is 9 Bryant S, ‘Collaboration in Law Practice: A Satisfying and Productive Process for a Diverse Profession’ (1993)17 Vermont Law Review 459 at 460. 10 Chavkin D.F “Matchmaker, Matchmaker: Student Collaboration in Clinical Programs” 1 Clinical Law Review 199 (1994-1995) at 213. 11 Ibid at 215.
11 needed. It also means “pulling weight” when it comes to the number of clients each student interviews during an in-take session. Some students will attempt to avoid seeing their fair share of clients by the following methods: - Dealing with on-going clients in person or on the telephone during session times. In this way, the student avoids interviewing new clients and consequently reduces their file load by not opening new matters. This work on ongoing matters may be simply unnecessary, or if necessary, can take place at a time when that student is not scheduled to see clients. Supervisors should keep a close eye on the appointment book (if one is used) or take note when students are continually discussing on-going matters with them during session times. Students engaging in this practice need to be advised it is not acceptable and is unfair to their clinical colleagues. - Taking an unnecessarily long time to interview clients or deliver advice. This may be due to incompetence on the part of the student, or a difficult client. However, some students do this purposely to avoid seeing further clients. This practice can be stopped by the supervisor being aware of the time being spent by students and, if necessary, interrupting the interview to remove the student and discuss with them the reasons for the interview taking so long to be completed. (It is generally important for supervisors to be aware if a student has been absent in the interview room for a long time. The student might be having great trouble dealing with the client and might need to be “rescued” by the supervisor knocking on the door and asking to speak to the student.) - Making phone calls, entering computer data or writing letters/documents during a client in-take session. Some students will busily work at the computer whilst other students are rushing off to interviews, seemingly oblivious of the action around them. Again, the supervisor needs to intervene by advising the student that such work must be done later and that the first priority during in-take sessions is to deal with the clients waiting to be interviewed. Some leniency can be given in relation to these practices in the first weeks of the clinical period, as it may be simply due to a lack of understanding by the new students of the requirements of the unit. However, students who continue these practices need to be given firm direction that it is unacceptable, as it lets down other members of the student team. Students should be encouraged to make session exchanges with each other if, for adequate reasons (such as exams), they are unable to attend their own session times. The students should be encouraged to enquire amongst their colleagues as to such arrangements prior to coming to the supervisor for assistance. 2. Sharing of precedents and knowledge – unfortunately, students are generally discouraged from sharing notes and working collaboratively
12 during much of their law school studies. As all legal practitioners would know, this is anathema to real practice, where much reliance is put on others’ knowledge and experiences. Accordingly, the attitude in clinic is often counter-intuitive to students who are used to working in isolation. Supervisors must point out that, as much as possible, clinic reflects real practice by encouraging sharing of experiences, information and knowledge. There are various ways to put this into practice. At its most basic, supervisors should encourage students to share precedents of letters or documents. If, for example the students must write a letter of demand, they should be advised to seek out a precedent from their session colleagues. If the supervisor remembers which student has recently written such a letter, the new student should be directed to request the precedent specifically from that colleague. If a student enquires about, for example, the process of obtaining a divorce for a client, s/he should be directed at first instance to sources of information available at the legal service or on-line (for example, the Lawyers Practice Manual). The student should also be told to consult a colleague who has just completed that process and in order to ask that person for direction. 3. Sharing of experiences and resolving ethical issues – Some supervisors like to schedule regular meetings with the entire student team on a particular session in order to ‘workshop’ client issues. This can take place either before or after the client session, often with food as an incentive to participate. It can provide the students with an opportunity to ‘de-brief’ and to share common experiences. The supervisor should also attend and direct the discussion as to matters which are of interest or concern to the students arising out of their file load. A discussion can ensue in which students have the opportunity to discuss (and hopefully) resolve ethical issues or simply share knowledge as to processes or other information. Some supervisors use the concept of presenting the ‘client of the week’ as a device to get the students started on discussion 4. Sharing of administrative tasks – Much of the work that occurs at the clinic needs to be shared amongst those present on any given day. Students must be directed to answer telephones, deal with on-the-spot enquiries, find files and wash their coffee cups in the same way that every office environment expects its workers to share these tasks. Part of the clinical experience is the learning of basic office skills. Students who are not carrying their load in these areas (e.g. ignoring ringing phones, pretending not to see a client waiting for attention in the foyer) must be taken aside and an explanation given of what is expected from them. 8. Teaching students non-legal skills – time management, communication, organisational skills Even though basic office skills are essential for a student undertaking clinic and for later entry into the real world of practice, many students have had no instruction in these fundamental processes. Nothing can be taken for granted here. Often clinical students have had no exposure whatsoever to a
13 professional office or work environment. Practical ways of assisting students are as follows: 1. Time management and organisational skills- It should be emphasised to students that their primary tool of practice is their diary. All important dates, including file reviews, court hearings, time limitations and client in-take sessions should be entered. This is very individualistic as some students will be well practiced in this and require no instruction at all. Others will require explicit advice as to how to maintain a diary. It may also be necessary to assist students in prioritising their file load - it may be useful in a file review to rank which files must be worked on urgently (within the next day or so) and which can wait. Sometimes, it is necessary to provide advice to students as to how to juggle their non-clinic responsibilities such as part-time work and study of other units. If it is obvious that a student is struggling to comprehend how to prioritise their time, early intervention is required to forestall a future disaster. This is especially keen around exam time, where even the best students have difficulties. 2. Communication skills – Again, this is very individualistic. There is very little in a law degree which assists students to learn basic communication skills. Indeed, with the stress that law school currently places on logical, non- emotional and analytical thought processes, there is a danger of not only ignoring valuable emotional traits in law students, but inducing what Parker et al12 have referred to as alexithymia – a reduced capacity for empathy, problems identifying feelings and difficulty describing feelings to others; limited imagination and an externally oriented, cognitive style. A student suffering from this disorder is unlikely to develop a positive rapport with clients or to be a creative problem solver, requirements which are becoming increasingly important in the legal environment. Olivia Burton13 provides an interesting insight into the concept of “narrative intelligence”. Her view is that legal problems habitually form a narrative and that students must learn to problem solve in the context of a sequence or flow of events, rather than in a strictly logical or mathematical mode of thinking14. Mertz15 (2000) believes that law school actually strips away students’ focus on the human elements of a narrative in favour of concentrating on legal elements and processes. In this way, legal education systematically removes a student’s grounding in moral and contextualized considerations. Thus, the human element of the narrative – the plot, character and context are ignored. In practice, of course, legal problems are not solved in a vacuum – they are highly contextualised and are always part of a larger picture of relationships, 12 Parker J, Austin E, Hogan M, Wood L, Bond B ‘Alexithymia and academic success: examining the transition from high school to university’ (2005) 38 Personality and Individual Differences 1257 13 Olivia Burton A ‘Cultivating Ethical, Socially Responsible Lawyer Judgment: Introducing the Multiple Lawyering Intelligences into the Clinical Setting’ (2004) 11 Clinical Law Review 15 14 Ibid at 24. 15 Mertz E ‘Teaching Lawyers the Lanaguage of the Law: Legal and Anthropological Translations’ (2000) 34 J. Marshall L Rev 91.
14 experiences and events in the lives of the protagonists. Indeed, clients almost always provide their instructions in a narrative flow - not always logically or chronologically, but there is usually a ’story’ which the lawyer must comprehend. Further, the process of a legal dispute is never static – issues emerge, instructions develop, new facts and unexpected developments often come to light in the course of a matter and the entire process forms a narrative flow towards an ultimate resolution. How a narrative is understood is also affected by the perception of the listener and will be influenced by their own beliefs, prejudices, experiences and culture16 . Thus, the ‘truth’ of a narrative depends on the listener and there may be multiple perspectives on how a narrative is to be understood and how meaning is to be drawn from it – a student must understand, when interviewing a client or a witness, that the ‘facts’ they are being presented with are being provided as part of a complicated context and will be affected not only by the person providing the information, but by their own perceptions of the world. This is a very different way of understanding the presentation of facts from the traditional academic method in which the facts are presented as fundamental truths which only form a backdrop to the legal principles enunciated by the case. Accordingly, Olivia Burton points out that if students are to spend their professional lives working within a narrative milieu, they must learn how to advance their own narrative thinking and develop narrative intelligence. It is crucial for students to develop skills which will assist them in gaining a wider understanding of people’s emotions, motivations, characters and relationships with others.17 . It is these matters, formerly considered peripheral and irrelevant to traditional legal analysis, which drive a legal problem and provide the context in which it developed. Clinicians can assist students to develop their narrative thinking by re-enforcing the importance of non-legal factors in problem solving and assisting the student to develop skills in fact-gathering. Students will often encounter clients with mental health, intelligence or substance abuse issues. These factors will often impact on the client’s ability to provide a lucid narrative and thus, the student’s ability to take clear instructions. Supervisors need to be aware that sometimes a student’s inability to obtain a coherent account of the client’s legal problem may be because of these hurdles. Often students fail to recognise that the client has a mental illness or that their ability to provide a coherent narrative is impeded by other factors such as the effect drug addiction or, indeed, prescription medication. In these situations, students should be reminded that their role remains to discover what the client wants and to provide advice. It is not their job to do what they think is best for the client – this is paternalistic and an inappropriate use of the lawyering role. The student must presume that the client is capable of giving instructions and making decisions. A mental illness may not 16 Frank S “Eve was Right to Eat the Apple: The Importance of Narrative in the Art of Lawyering” (1996) 8 Yale JL & Feminism 79 17 Olivia Burton A ‘Cultivating Ethical, Socially Responsible Lawyer Judgment: Introducing the Multiple Lawyering Intelligences into the Clinical Setting’ (2004) 11 Clinical Law Review 15 at 24.
15 significantly affect a person’s ability to provide instructions in many cases – but the client may require further assistance to understand the student and to communicate instructions. They need to be directed that the presence of cues that indicate that their client may be suffering from a mental illness (or if the client advises the student that s/he has been diagnosed with a mental illness) should alert the student to take more care. It should not lead the student to the assumption that the client is unable to provide instructions. You should remember: • Make it very clear to the student that it is essential that they clearly advise the client what can be done and what cannot – their function and their role as the legal adviser. • If the student feels in any personal danger from the client, they must not be exposed to unnecessary risk. Find a reason to cease the interview and continue at another time. • The student must give clients clear options – If the legal service can’t help them, who can? If one thing can’t be done, what can? 9. Learning styles – how to take into account students’ different levels of skill, knowledge and understanding In their seminal work Organizational Psychology: An Experiential Approach to Organizational Psychology,18 David Kolb and Roger Fry set out their now celebrated learning hypothesis based on four stages of learning. This theory suggests that there are four stages which follow from each other: Concrete Experience is followed by reflection on that experience on a personal basis. This may then be followed by the derivation of general rules describing the experience, or the application of known theories to it (Abstract Conceptualisation), and hence to the construction of ways of modifying the next occurrence of the experience (Active Experimentation), leading in turn to the next concrete experience. All this may happen in a flash, or over days, weeks or months, depending on the topic, and there may be a "wheels within wheels" process at the same time. Clinic is a wonderful environment for Kolb and Fry’s learning theory to really be put to the test. Students have an opportunity, on a daily basis, to experience, reflect, conceptualise and experiment (within the boundaries set by their clinical supervisors). This “hands-on” approach provides direct transfer of knowledge from the immediate problem being faced by the client and the clinical student, to the next client that presents with a like problem. We have to acknowledge that students learn in a variety of ways. Thus, supervisors must provide students with an array of learning opportunities. We need to be open to exploring and experimenting with various teaching tools. All student teaching should be approached by experimenting with a number of possible teaching methodologies – utilising interactive techniques such as 18 Kolb D A and Fry R, ‘Toward an applied theory of experiential learning’, in C. Cooper (ed.) Theories of Group Process, (1975) London: John Wiley.
16 demonstrations, visual aids, anecdotes and simulations. Remember it is not a “one size fits all” methodology. Some students need little instruction or explanation and others need a lot more. Some students learn better when provided with visual aids (such as diagrams and flowcharts) and some respond to verbal instruction. Supervisors need to be sensitive to these differences and alter their style according to the needs of the individual student. Students come to clinic with a variety of life experiences, skills and knowledge. Thus, without being too invasive, the supervisor needs to discover some information about their students’ backgrounds in order to properly ‘pitch’ their teaching. If, for example, a student has spent many years working as a paralegal, the supervisor will need to alter his/her teaching style to take into account a strong knowledge and skills base. 10. Appropriate student/supervisor relationships Clinic provides a unique opportunity for informal teaching. Students often report that clinic is the only time in their legal studies that they get to know their teacher as a person and there are a great many opportunities in clinic for learning to take place outside of the formal student/teacher transactions19 - for example, in informal discussions over lunch at the end of a client in-take session or driving to or from court. It is in these situations that students feel relaxed and, it is hoped, secure enough in their relationship with their clinic supervisor to discuss issues that have been raised by the student’s many and various client interactions. The chance to indulge in this kind of free ranging discussion is very rare in the classroom setting – firstly, because the sheer numbers of students in a traditional lecture setting inhibits one-on-one discussion of this sort and secondly, because the atmosphere is too formal and too rigid. Further, because lecturers usually have the specific objective of getting through a set amount of material in each lecture period, this discourages the relaxed and familiar environment which is a prerequisite for such interactions. For clinical supervisors, a large part of the enjoyment of the clinical teaching experience is this informal and fertile teaching environment - it can be a very fulfilling form of legal pedagogy. The downside of this informality is the possibility of the relationship becoming invasive, interventionist or uncomfortable for the student. This can also occur for the supervisor, but supervisors must be constantly aware of the power imbalance that remains between teacher and student, notwithstanding the informality of the environment. This is especially relevant where the supervisor and student are of different genders. Practical ways to avoid miscommunication and misunderstandings from students are as follows: - Be careful of jokes, sarcasm, quips and humorous ‘aside’, especially when discussing a student’s progress in the unit. Such comments can be misunderstood and resented. This is especially pertinent when working with a 19 Chavkin D F, ‘Matchmaker, Matchmaker: Student Collaboration in Clinical Programs’ (1994-1995) 1 Clinical Law Review 199 at 230.
17 student whose first language is not English, where the language barrier may get in the way of comprehension. It is particularly relevant when using colloquialisms which may be misunderstood. - All one-to-one discussions with students should take place with the supervisor’s office door open. If this is impractical because, for example, criticism needs to be given and may be overheard, the student should be asked if s/he is happy for the door to be closed. Again, this is especially relevant where the supervisor and student are of different genders. - Any social events which take place outside of the clinic which the supervisor attends should not be a one-on-one event. For example, it is inappropriate for a supervisor to take one student out to lunch during the clinical period. The only exception to this may be in a situation where the supervisor is taking the student back to the clinic or home after a court appearance or a client home visit. - Students should not be asked about their personal lives unless they indicate a willingness to discuss such matters with the supervisor. In any event, such discussion needs to be on a “quid pro quo” basis. That is, a supervisor might instigate such a discussion by saying “I had a really busy weekend – I spent most of Sunday with my wife and kids at a huge country market, shopping like crazy. How was your weekend?” Students who are unwilling to disclose information about their personal lives should not be pushed to do so. It is never appropriate to enquire as to a student’s relationship status, unless this information is volunteered. - It is never appropriate to discuss another student’s personal life in any way with his/her colleagues. The only suitable topic of discussion would be another student’s client matters which are pertinent to the student with whom you are discussing such matters. It should be remembered that the supervisor must retain the ultimate authority over how the file is conducted, no matter how confident or passionate the student may appear in the way s/he conducts the file. Ultimately, the supervisor must also assess their students and provide a mark and grade in accordance with the assessment rubrics created for the clinical units. This assessment process must be done in a dispassionate and disinterested manner in order to provide the objectivity for a fair and unbiased result for all students. 11. Working with other supervisors Much of what is written above relating to teamwork and to appropriate relationships is also relevant to your relationship with other supervisors. It is up to clinical teachers to model appropriately professional behaviour to their students and this includes the way we interact with each other in an informal way and the way work, knowledge, experiences and skills are shared amongst supervisors. It is never appropriate to criticise another supervisor to a student. You may have a different approach to the way a file is dealt with, or how a document or letter should be written but this should be explained to
18 students in a way that does not denigrate another supervisor –lawyers have individual differences in the way they practise law and certainly not all teachers or lawyers do everything in the same fashion. Accordingly, it is also important to remember that as supervisors we are members of a clinical teaching team. If it is necessary to miss your supervision day, an exchange must be made with another supervisor in advance and the students informed. It is then incumbent upon you to “pay back” that missed session to the supervisor who filled in for you – arrangements should be made with diaries and confirmation made by emails. This ‘formal’ approach avoids misunderstandings between supervisors and ensures that resentments do not build up with some supervisors feeling that others are shirking their supervisory responsibilities. Team work amongst supervisors also means signing out other supervisors’ letters where necessary and also providing advice to students in urgent situations where they cannot access their own session supervisor. Be careful of this, however – you should always ask a student first as to whether they have discussed this matter with their own supervisor and if not, why not. This is because some students develop the habit of ‘supervisor shopping’ whereby they approach a number of supervisors hoping the advice they are given on a file may be more palatable than what their own supervisor has told them. If you give students different advice from what they have already been given by their own supervisor you run the risk of undermining that supervisor. Students should only be seen by their non-session supervisor is situations of real urgency and not where students are impatient with waiting to see their supervisor or have developed the ‘supervisor shopping’ habit. Supervisors should always model courteous, polite and professional behaviour to each other and to other members of staff. It is acceptable to disagree with another supervisor’s opinion in front of students as this can lead to a fertile and interesting discussion. Such a discussion can even be passionate and fervent. However if you need to criticise another supervisor about their teaching or disagree on a staffing or other internal office issue, this should take place out of the clinic or behind closed doors. 12. How to discipline Many clinical teachers have an intrinsic belief that a student will learn certain skills, including how to act professionally, simply by seeing a real client with a legal problem and then having to deal with it on an ad hoc basis. There is perhaps a belief that these skills will develop instinctively from having to find a solution to that problem ‘on the run’. Certainly, it is possible to learn this way,20 but this concept of “learning by osmosis” must be tested as it is not necessarily the best way to learn professional skills21. Accordingly, 20 K Sylvester et al (2004) ‘Problem-Based Learning and Clinical Legal Education: What Can Clinical Educators Learn from PBL?’ 4/6 IJCLE 39. ; Stuckey (2007), Ch 5: ‘Best Practices for Experiential Courses’. 21 Evans A & Hyams R ‘Independent Evaluations of Clinical Legal Education Programs: Appropriate Objectives and Processes in an Australian Setting’ (2008) Griffith Law Review 13
19 sometimes students simply fail to learn the appropriate professional skills necessary to pass the unit. Early intervention may be necessary. In a situation where a student is in danger of failing the unit, s/he needs to be advised of this possibility in a feedback session with the supervisor and a letter then sent to the student (by the Chief Examiner of the unit for that clinical period) of the discussion and the outcomes. This letter must enumerate the difficulties the student is having and the procedures the student must undertake in order to avoid a fail in the unit. What if students are denigrating clients or fellow students or making continual comments which the supervisor totally disagrees with on a moral or ethical basis? How far do we go to “correct” them and should a student lose marks for making comments or providing insights we find repugnant? These issues fall very much within our reach as supervisors and we have a responsibility to deal with student attitudes insofar as they impinge upon appropriate client service. In taking this position, it should be acknowledged that it is almost impossible to alter a student’s perception of the world in one clinical period of study and it is not a clinician’s brief to do so. However, it is within our purview to seek to challenge students’ preconceived opinions and to ensure that any biases or prejudices that we cannot adequately remove do not impinge on our students’ sense of professional responsibility. If we perceive students’ attitudes, as revealed in their comments and attitude, as impinging on their professional client relationships, it is our responsibility as ethical and reflective practitioners to ensure the student is aware that such behaviour is not condoned and that ultimately marks may be lost as a result. Such a stance presents the very real issue of supervisors needing to be in basic agreement as to what constitutes “inappropriate” insights or attitudes in our students’ interactions with their clients and being united in this ideological position. Thus, it is part of our responsibility to correct inappropriate attitudes to clients, and ensure that students are challenged as to any preconceptions they may have as to race, gender, poverty, client ignorance or level of education. Students must also be advised that they need to operate within the boundaries of the legal service’s philosophies. For example, it is inappropriate for students to take an aggressive and litigious approach, regardless of costs, where the legal service operates on a philosophy of settlement and keeping legal costs to a minimum. The way to do this is obviously in private and taking a non-threatening approach. Supervisors should not react in anger, but consider how to broach the issue in a way that can have a productive outcome. 13. Feedback – informal Clinic also differs markedly from lecture style in that clinicians are in the unique position to provide their students with one-to-one, detailed, timely and ongoing feedback as to their progress. Feedback in this context is distinct from assessment in that it is a powerful and effective vehicle for student learning. This is one area which sets clinical teaching entirely apart from the mainstream - students benefit enormously from immediate knowledge and
20 insight as to their progress and such information greatly assists them in the “reflection” stage of Kolb and Fry’s paradigm (discussed in paragraph 9 above). It then assists them to move forward with a sense of security and purpose to the abstract conceptualisation stage. For example, if a clinical student has dealt with a client and then has received an immediate and helpful critique from her supervisor, this will assist her to reflect on whether she has: a) understood the client’s problem and the legal, social and financial consequences which have arisen, and b) dealt with these issues in a caring and professional way. The student is then in a position to use her insights to move from a personal reflection of her immediate dealing with this particular client to deriving more abstract rules from the experience. Further, she can apply principles of her doctrinal learning from law units that she has already studied to a more general understanding of the type of problem this client has presented with. Basically, she is able to move from the concrete to the abstract, having the benefit of knowing that she is on safe ground in that progression, as her supervisor has assisted to “ground” her reflections which are derived from the immediate client interaction. Without the benefit of the supervisor’s immediate feedback, her move to the abstract stage would be insecure and halting. Thus, clinical students have the huge advantage of testing their insights against the hard rock of their supervisor’s knowledge and experience. The feedback which the supervisor provides does not always have to be positive. Negative feedback as to a student’s performance with their client can also be hugely productive as long as it is given in a fashion which is designed to assist the student in future transactions. It should be noted that feedback in clinic is not at all related to assessment – clinic has the unique opportunity to use feedback as a way of centring and cementing student learning. It is an essential tool of the clinician in the “reflection’ aspect of clinic’s dual objectives of “action and reflection”. There are a number of fundamental principles to be adhered to in all feedback to students (both formal and informal): Supervisors must be forthright. Evaluations should be obvious and clear. Criticisms and future expectation for improvement should be as clear as possible. Colloquial “asides” that are meant to be humorous should be avoided as they are often not taken as so. Clinicians need to take into account that law students often have large egos, but they also deflate very easily. They are often suffering from an underlying anxiety or insecurity. Students will often remember one flippant or negative aside that is made in clinic for years afterwards and retain unnecessary bitterness against their supervisor based on a simple miscommunication. This is not to say that clinicians should be in fear of students not valuing the critiques made of them – part of being courageous and straightforward with students is an acknowledgment that they will not like what is said to them and therefore may not like their supervisor. Clinical supervisors should be able to live with this (as should all teachers) – but this aversion by the student of a
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