More practice needed in legal education

 

The preparation of students for law practice should play a greater role in legal education in Ireland, writes LARRY DONNELLY

HISTORICALLY, LAW study at third-level institutions in Ireland and in other common law jurisdictions was theory-based and took place exclusively in lecture halls. Law, however, is both an academic and a vocational discipline. Accordingly, law schools in every other common law jurisdiction have embraced the role of practice in legal education, but Irish law schools still lag far behind.

Law schools elsewhere have incorporated law practice primarily, though not exclusively, by promoting and investing in clinical legal education programmes.

Clinical legal education took off in the United States some 50 years ago. It emerged from a growing consensus among law teachers that their students were poorly served by being taught legal theory with little regard for its practical implications. The curriculums of law schools were substantially revamped and elements of practice infused. Now, virtually every US law school has law clinics serving indigent clients. States give a special licence to final-year law students to represent clients in court.

While Irish law schools have not scaled these lofty heights, there are fledgling clinical legal education programmes. The programmes involve placements for students who receive academic credit for and are evaluated on the merit of their work, much of which is undertaken in the field of public-interest law. Efforts to expand existing programmes are ongoing, and exciting new initiatives are in the works. Critics might say that existing programmes in Ireland are experiential, not clinical, yet these programmes represent a marked departure from tradition and give today’s law students opportunities they would not have had before.

Anecdotally, solicitors and barristers comment that the third-level law degree they studied for did very little to prepare them for the realities of law practice. Students who have been through our clinical legal education programme remark upon the dissonance between their studies and their placements. Prospective employers are just as interested in a student’s practical know-how, interpersonal skills and relevant experience as in her performance in examinations.

Despite these manifest truths, opposition to incorporation of practice in Irish legal education persists. Two oft-cited grounds are that practice training should be left to the professional schools, and that many graduates do not seek to qualify professionally.

The first wrongly seeks to divorce law study from its practice and leaves too much formative responsibility to the professional bodies, even taking into account the excellent recent innovations in the training provided by the professional schools. The second is similarly weak; practical skill development is important to students studying law regardless of how they will use their degrees.

Another, more understandable objection is that Irish legal academics may not have the time or the experience necessary to incorporate elements of practice into their teaching. Time is constrained because they are now under the same pressures to bring in and produce funded research as colleagues in other disciplines. It’s far easier for a scientist than an academic lawyer to do this.

Moreover, a doctorate in law is increasingly a prerequisite to entry to the legal academy. A professional qualification and experience in practice are accorded little, if any, weight. The doctoral requirement naturally limits the number of past or present practitioners engaged in full-time law teaching.

At any rate, the battle between those who wish to include practice in legal education and those who do not has been fought already across the common law world. And those opposed to including elements of practice in legal education have lost. Those who wish to include practice triumphed largely because of advances in clinical legal education. While its successes are most pronounced in North America, where law is studied at postgraduate level, there has been tremendous progress in the United Kingdom.

At Northumbria University law school, for instance, law students work in law clinics under the supervision of solicitors who are also members of the academic staff of the law school. The students prepare real cases which are then run by the solicitors and serve indigent clients who otherwise might not have access to the courts. They earn academic credit for their efforts, gain practical experience, and see at first hand how the law and the legal system serve, or do not serve, those on society’s margins.

In the UK, just as here, law is an undergraduate subject and students must complete vocational courses accredited by the legal professions prior to qualification. The way in which many UK law schools have moved, and the successes of institutions such as Northumbria that have gone with the trend, would seem to effectively vitiate the objections of those in the Irish legal academy to including elements of practice in legal education.

Of course, any change or modification in the direction of legal education in Ireland must reflect economic and marketplace realities. The professions have been hit hard by the recession, and many would argue that the most apt reform of legal education would be to limit the number of law students. But there will always be a need for some lawyers, and those graduates with practical skills and “real world” experience are best-equipped to enter the professions.

Also, partly due to marketplace conditions, law graduates increasingly undertake a further course of study. The numerous high-quality postgraduate programmes now on offer should incorporate practical skills training, although nuanced to some extent, given that many advanced degree-holders will pursue legal careers outside the professions.

None of the foregoing is to say that the theoretical and abstract are dispensable. They are indispensable to legal education, and central to students’ personal and professional formation. But again, if we are to look globally, those in Ireland who still argue that practice should not play a role in the education of law students either have a monopoly on the truth or are wrong. In my view, it is more than likely the latter. Solicitors, barristers, judges, legal academics and all involved in the administration of justice in this country have much to contribute to this discussion. Please do.