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Monash University
Faculty of Law
Clinical Supervision
Manual
© Ross Hyams 2014
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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
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4. Creating a ‘safe’ environment for ‘stoopid’ questions
5
5. Discussion of professional issues with students
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6. How to motivate and maintain enthusiasm
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7. Team work – how to build up strong student teams
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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
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13. Feedback – informal
18
14. Formal feedback (the mid semester assessment)
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15. Assessment issues
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16. Keeping good records
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17. Supervisors’ mental health
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18. Conclusion
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- Basic Clinical Bibliography -
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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;
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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
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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.
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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.
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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.
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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.
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
4
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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 selfknowledge 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.
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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.
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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
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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
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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, nonemotional 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
21
critical analysis of their clinical work should not be based on a
misapprehension of what was actually said - that is, it should not be based
on a supervisor’s inability to communicate a clear message.
Supervisors should not wait for a formal feedback session.
Critiques should be given in an ongoing fashion to ensure students have time
to improve performance. There is no purpose in a supervisor being unsatisfied
with students’ work, and not telling them. Criticism should not be stored up for
one big session, as this may have damaging consequences on a student and
be more of a setback in their performance than a constructive experience.
Instead, well-timed and minor criticisms should be provided. Of course,
supervisors must also be careful of constant nagging in which particular
students are always being criticized– an attempt should be made to achieve a
balance with positive comments if at all possible
Transparency
This is essential. Clear, concise, thorough and non-defamatory records of
students’ progress throughout their work period at the clinic must be kept.
Students should be advised of their ability to have a copy of all written
comments and a complete breakdown of their marks when the course is
completed. Notes should always be thoroughly professional – with no
personal asides or irrelevant comments not associated with work
performance. Written records should also all be of one nature – the same
comment structure or marking sheet format should be used for all students
with notes written about all students at the same time, if possible. Again, the
fundamental basis of this is being systematic in the approach to assessing
students in the clinic and providing feedback in a clear, even-handed and
impartial way to all students.
Students carry emotional baggage.
Students all have different and varied circumstances that impinge on the
quality of their work in the clinic and their commitment to the unit and their
clinic clients. In many law schools, clinic is but one unit of study in a busy law
course and must be juggled with the students’ social and work life. Taking this
balance into account at all times should make supervisors hesitate before
verbally attacking a student with harsh comments about things like punctuality
and responsibility if, for example, a student has let their clinical colleagues
down or missed an appointment. Students should always receive the benefit
of the doubt – something appalling may have happened in their lives which
made them unable to perform a work task or be on time and, as such, matters
would need to be approached in an empathetic and compassionate manner –
thus modelling the way clinicians would want their students to interact with
their own clients. At the same time, supervisors have the right to expect their
students to treat them with respect and courtesy. Matters such as punctuality,
civility and simple good manners are expected from students and should form
part of the supervisor-student relationship.
Supervisors need to be aware of the different types of feedback available to
them in their mentoring:
22
•
•
Formal feedback (deal with in 14 below).
Informal or casual feedback – this occurs on almost a daily basis. This
can be broken down into various areas:
a) Casual feedback in the course of daily interactions - Praise should be given
in public and criticism in private. It is never appropriate to belittle a student in
front of others. This serves absolutely no purpose and just denigrates the
student concerned. Negative feedback must be given in private. Students
have the right to keep their mistakes private from their peers. Praise in public,
however, is the corollary of this rule. A word or two of praise in front of other
students will always be appropriate, however – as long as such public praise
is divided equally amongst students.
b) Letter writing - Alterations made to a student’s letter is feedback and a
supervisor needs to encourage students to read and comprehend why
changes were made, not just accept them without the alterations adding to the
learning experience. Supervisors should also encourage students to discuss
such alterations with them. The supervisor thus needs to make the alterations
legible (for the typist and the student) and be able to justify the changes that
were made. Supervisors should adopt the principle that students are
permitted to develop their own letter writing ‘style’ (as long as it complies with
the format style of the clinic). Thus, the letters that students write may not
comply exactly with the mode of expression or tone that the supervisor uses after all, the student is running the file and communicating with the
appropriate parties, not the supervisor. Thus, as long as the written
communication is clear, concise and comprehensible, the supervisor should
not be too interventionist in enforcing a particular style or voice in the
students’ letters. This approach allows the student to develop their own
written ‘voice’. However, students also need to know that there may be an
expectation when they become an employee in a legal firm that they will
comply with the “house style” of that firm when it comes to writing letters or
preparing documents. Some employers have a particular style and
compliance to that style is simply demanded. Accordingly, even though
students may develop their own writing style during their legal service
experience, they may have to be prepared to abandon in when working for a
new employer!
c) Interviewing clients – Obviously, the supervisor is not present during the
client interview, but the student’s competence can be easily gleaned from the
way facts are presented to the supervisor. In the initial weeks of the unit, it
may be frequently necessary to send a student back into an interview to
gather more information, as many students simply do not know what
questions to ask of clients in any given situation. As the weeks progress, this
should happen less frequently (and by mid-semester assessment - not at all).
Thus, if a student appears to be constantly vague about the information
gathered at the interview, or provides piecemeal or incomplete material to the
supervisor when discussing the client’s matter, supervisors need to discuss
interviewing techniques and to provide further guidance in interviewing skills.
It may be necessary to ask the student to re-read the 3 stage interviewing
23
process, as described in Chapter 2 in “Practical Legal Skills” and discuss this
further with the student.
14. Formal feedback (the mid semester review)
This provides an opportunity for the supervisor to individually discuss each
student’s progress in the unit – including strengths and weaknesses and
where the supervisor believes there may be room for improvement. It also
includes the following:
•
A "spot check" of files, to make sure files are neat, readable, in order and
that file notes are up to date.
•
Discussion of the student’s personal diary system for file management.
•
An opportunity for the student to give feedback to their supervisor about
how they feel about the unit – for example, how about the seminar
program and supervision at the Legal Service.
To a certain extent, mid semester review signals the end of the “nurturing”
period of the clinical unit, and the commencement of higher expectations.
Students should be told that the expectation of their performance will
increase; the ‘basics’ should be in place and now they can be achieving better
outcomes. It is useful to use the grade descriptors to explain to students what
they should be achieving in order to obtain a higher grade in the unit. It may
be appropriate to point out sections of the grade descriptors to students,
indicating specifically what the student needs to do in order to achieve that
level of competence. This is particularly useful with high achieving students
who want to know how to do even better – a discussion of the requirements
set out in the grade descriptors for achieving a “High Distinction” will give
them something further to strive for.
There are some overriding principles that should be adhered to when carrying
out a mid semester review:
Criticism sessions should end positively. There are always encouraging things
to say to a student no matter how much they are struggling and no matter how
far they have to go to develop skills. If a supervisor has spent time being
critical, they should always try to find at least one affirmative comment and
make this the last part of any criticism. It does not have to be a substantive
piece of praise, as long as it is an encouraging observation which can leave
the student feeling that there are aspects of their work or the effort they are
making that are appreciated.
Feedback should be requested on the supervisor’s performance. This is
simply providing students with a right of reply and an opportunity to also
provide a critique. They are usually very reluctant to do so, but will sometimes
open up if convinced that it cannot affect their final grade in any way. If they
do take up the challenge and provide a critique of the supervisor’s teaching,
supervision or legal work, it is incumbent on the clinician to model appropriate
behaviour and not get angry with their criticisms or make excuses. The
24
critique must be taken in the open environment in which it is given;
remembering the very distinct power imbalance that always exists between
teacher and student, despite the fact that it is less obvious in the clinical
setting. For most students, it will take an act of courage to appraise their
supervisor directly to his/her face, but if clinicians are sincere in their desire
for a student to do so, the student should be rewarded for it by mature and
insightful responses from their supervisor.
If necessary, a written summary of the discussion should be provided. If a
student is a possibility of failing or doing very badly in the clinical unit,
feedback discussions should be summarised in writing and a copy provided to
the student. Any expectations enunciated in such a document should be very
clear and obvious, with deadlines provided for achieving certain tasks, if
appropriate. In this way, the fact that it is in writing makes it exceedingly
obvious that the supervisor is very serious about expectations. Further, if the
student fails to satisfy the criteria set out in the letter, a supervisor cannot be
accused later of being unclear in their expectations when the student
ultimately fails the unit or does poorly.
Formal feedback must have the same structure for all students. Clinical units
afford the distinctive opportunity for supervisors to engage in one-to-one
teaching. This is obviously a pedagogical strength, but an assessment
weakness. The most prevalent accusation which is levelled at assessment in
clinical programs is that of subjectivity. As such, clinicians are under an
obligation to ensure that assessment of students is always completely above
reproach. Accordingly, a particular structure for prescribed feedback sessions
should be settled upon and then not varied by individual supervisors within the
clinic. Students always compare what is said to each other, so each student
should be provided with the same structure. If not, certain individuals will feel
they are being victimized, or that others are being favoured.
Students can be provided with a self-review sheet to complete a few days
prior to the discussion. This enables them to take the process seriously and to
develop some insights into their performance. At the commencement of the
mid semester review, students should be asked for feedback on themselves
before the supervisor provides it. Students are often remarkably good at selfevaluation and usually will pick the item/s that requires discussion with them
in a formal self-review session. If an official feedback sheet is provided for a
more formal or methodical feedback session, this should include a section in
which the student could provide a self-review.
If the student correctly identifies the area/s of weakness, it softens the feelings
of criticism, as the supervisor can commence observations along the lines of
”I’m glad you pointed that out, as that’s the very thing I wanted to discuss with
you…”, thus leading neatly into the critique. Conversely, students will
sometimes point out an area as a strength which the supervisor wishes to
discuss as a weakness or a matter for further improvement. This need not be
an insurmountable issue and can have its pedagogical value. For example, a
student may like their own formal or officious communication tone which they
have adopted in their letters to clients, and the supervisor may wish them to
25
adopt a more approachable, plain-English style. They would have identified
their letter writing as a strength, because to them it sounds more professional
and “lawyer like”. The supervisor may feel that such a style acts as a barrier to
communication. In such a situation, the supervisor could commence a
discussion with the student about the appropriate function as lawyers in the
communication process and potential role in de-mystifying the law for clients
by use of language. Thus, despite the fact that the student had measured
themselves in this area completely in opposition to the supervisor’s
assessment, a useful, and it is hoped, positive dialogue can ensue. (It is
hoped that the student would have received regular feedback on their letter
writing by the supervisor’s corrections during the teaching period and thus, by
this stage, have formed an appreciation of appropriate style!)
Some students will ask what mark they should expect to receive for the unit.
In this regard, it is quite appropriate to indicate the possible grade that they
are currently at: “With your current performance, you would be a possibility for
a credit, but this is no guarantee. It depends on your future performance”
If possible, all mid-semester reviews should take place in the same week. In
this way, students are treated even-handedly and will not feel prejudiced
against if their review is held earlier or later. Brief notes should be kept of the
discussion so the supervisor can refer to them at the end of the clinical period
when marking takes place.
15. Assessment issues
The focus of assessment in clinic must be distinct from traditional assessment
methods because the teaching methodologies being used are distinct. The
clinician, in teaching process rather than knowledge, obviously must therefore
assess process and not knowledge.
Students, do, however, learn a body of “knowledge” in the traditional sense
whilst working in clinic. They come out of clinic often with a new set of skills
and a wider knowledge base, not only of the law itself, but its processes,
abilities and (more often than not) its disabilities. Clinical pedagogy does not
derive its knowledge base from appellate decisions and thus students learn
knowledge by involvement in particular legal situations from which they can
enhance and deepen their knowledge and insights into legal doctrine. This is
learning the law in a totally different way from the method they have been
exposed to in academia. Anthony Amsterdam, Professor of Law at New York
University Law School sums this up as follows –
“The academic teacher seeks to enrich understanding of the general by
deriving abstract principles from the particular; the clinician seeks to enrich
understanding of the general by refining a capacity to discern the full context
of the particular.”22
22
Amsterdam A A, ‘Telling Stories and Stories about them’ (1994)1 Clinical Law Review 9 at 39.
26
Accordingly, clinical assessment is an on-going process. As such, supervisors
must keep regular written records of their impressions of the students’
progress. Accordingly, a few lines as to each student’s progress on a
fortnightly or monthly basis, or after each file review, will assist the supervisor
when it comes to the end of clinical period assessment. It will also protect the
supervisor from any claims of capricious marking by a student. Supervisors
need to be very familiar with the grade descriptors and marking rubrics which
are promulgated to students in the unit guide and use these as the basis of
their ongoing assessment. Discussion with other supervisors can be very
helpful in this process and, if it is at all possible, supervisors should exchange
at least one supervision session during the clinical period in order to supervise
a different student team. This will help provide a point of comparison to one’s
own student team.
16. Keeping good records
It is fundamental that supervisors record their student supervisory work. Each
supervisor should develop a way of independently recording the progress of
students’ files from file reviews. A simple chart of the date of the file review,
the status of the file and the next action to be taken will fulfil this requirement.
In this way, the supervisor has a separate record to the student as to the
status of each file and if necessary can resolve a client’s query about their file
without access to the file itself or the necessity to speak to the student. This
also resolves any issue of miscommunication after a file review as to what
action the student was expected to take on each file, as the supervisor has a
separate note of what was agreed upon.
A chronological record of each student’s progress in the clinic must be kept.
These notes should not contain any defamatory or extrinsic material, as it
might be necessary to provide them to the student if a complaint is made
about assessment. The more detailed, the better. They will be of great
assistance when marking the students as the end of the clinical period and
the written comments should be compared with the grade descriptors to assist
in ascertaining which grade is appropriate for the student to receive.
Chronological notes must be kept of all formal feedback sessions with
students as a summary of what criticisms (or praise) were provided to the
student and any feedback or response provided by the student. Agreed future
behaviour or actions must also be recorded. If there are any complaints by
clients about students, of course this must also be conveyed to the student
and appropriate discussion take place as to what action to be taken. Such
discussion needs to be thoroughly documented and the students provided
with a copy.
If a student wishes to complain about any aspect of the clinical unit, including
the student/supervisor relationship, again thorough notes need to be kept of
any discussions which ensue and the student provided with a copy. Such
interactions should be treated like client interactions and appropriate ‘file
notes’ kept.
27
17. Supervisors’ mental health
It is often felt by clinical supervisors that there is very little time in the clinic to
take stock of wider issues with students, such as access to justice. This is
because of the pressure of client in-take sessions and the need to resolve as
many issues as possible in a short period of time. There is a strong
awareness amongst clinicians that whilst academic discussions are taking
place, the client is waiting impatiently for the student’s return with a solution to
their legal problem. However, supervisors need to remind themselves of the
dual role they are playing between the needs of the client to be serviced and
the need of the student to be educated and appropriately mentored. Time
must be made for a proper exploration of the issues raised by the client. The
supervisor can flag with the student that this particular client’s issue raises
matters that require further consideration and time can be set aside for the
supervisor and student to explore those issues after the client has left the
clinic. In this way, pedagogy can continue, but not on the client’s time. It may
be difficult in a fast-moving and pressured client in-take session, to resist the
temptation give a student “the answer” and move on to the next matter, but
this approach has no educative benefit for the student whatsoever.
To a large extent, the relationship between supervisors and their students is
about managing expectations and goal setting.23 Given the pressure on each
supervisor to carry out a mentoring and educative role while at the same time
attempting to properly service the clients’ needs, there are some practical
processes that can be put into place to ensure that supervisors do not ‘burn
out’:
1. The supervisor must control student file loads. This requires supervisors to
keep a close watch on the number of files each student is dealing with. If a
student is at maximum load (what amounts to “maximum” will differ with each
student), it may require the supervisor to decline to take a matter on and
instead refer the client to another student, another legal service or another
practitioner. Sometimes this is just not possible as the client’s need is simply
too great – this is a decision left to the supervisor’s discretion.
2. The supervisor must control the type of caseload. If a matter comes to the
legal service which will be incredibly resource demanding on both student and
supervisor, the supervisor needs to make a call whether it is suitable to take
on the matter, no matter how strongly the client’s need may be felt.
Sometimes, one file can take most of a supervisor’s time and attention whilst
relegating all others to a lower priority. This may be appropriate in matters of
dire need, but it is not a situation which should be occurring often. Of course,
some supervisors are more comfortable with certain types of matters than
others, but it is important to try to keep a balanced mix of file types, both for
the students’ educative needs and for the supervisor to develop their
expertise in a range of different legal issues. The best way for a supervisor to
control the pressure of file demand is to control both the number and type of
23
C Batt et al (2003-2004) ‘Confronting Students: Evaluation in the Process of Mentoring Student
Professional Development’ 10 Clinical Law Review 581.
28
file being handled by the students. Again, this requires a consideration of the
needs of the clients and of the legal service, the abilities of the students and
the demands on the supervisor’s time.
3. Supervisors need to learn to say ‘no’. This may mean that a student will
have to wait to be seen until later in the day or on a different day altogether. It
also may mean that a client, who arrives at the clinic without an appointment
or outside of the session time, will have to be seen at another time, on
another day, or sent to another service. A supervisor cannot be “all things to
all people” and should provide students with fairly strict rules as to their
availability during non-session times. For example, it is quite appropriate for
supervisors to provide students with their mobile phone numbers to contact
them – however, it could be stipulated that this number only be used in what
the student deems as an emergency, and only between certain stated hours
of the day. It may also mean telling a student that, for example,
notwithstanding how busy the student is, the supervisor cannot and will not
complete a half finished brief that has been left for them – again, this requires
a balanced decision, as such a stance should not be taken if it means the
brief will be late and the client suffer a detriment.
4. Supervisors need to take a long term view of their role. One of the stresses
of clinical supervision is getting a team of students to a level of proficiency just
in time for the clinical period to end and then having to start again with a new
group “from scratch” as it were. However, it is also one of the joys of clinical
supervision to see how much knowledge, confidence and skills have been
gained by the outgoing team – this is most keenly observed as you watch the
outgoing team mentor the new team. Sometimes, it is only at this point when
the outgoing student team realise how much they have gained from the
clinical experience – much of which is attributable to you as supervisor! Thus,
instead of feeling that new student teams represents endless repetitions of the
teaching and mentoring role, supervisors should perceive each new clinical
period as a unique challenge to impart knowledge, provide skills and interact
with intelligent, enthusiastic, yet inexperienced legal advisers.
4. Supervisors need to remember that they are part of a clinical team and of a
legal service, both of which have a strong willingness to share knowledge and
skills. They are also part of an elite group of legal practitioners across
Australia who are also clinical supervisors. Finally, they are also members of
a wider profession of colleagues who can be approached for information,
support and ongoing training. As such, supervisors should not feel alone or
isolated, but realise that there are many ways of obtaining support and
assistance in both the lawyering and mentoring roles. Supervisors will feel
confident in the role if they keep themselves abreast of the law. They should
also avail themselves of training opportunities in areas of legal practice, skills
and legal education. In this way, they will feel well-trained and, more
importantly, supported, to enable them to carry out the task of clinical
supervision.
29
18. Conclusion
In his article, “Clinic in the classroom: A step toward Cooperation”, Elliot Burg,
Associate Professor of Law at Vermont Law School, complains that:
“The vast majority of students I have supervised over the years have come to
their clinical work with only the barest understanding of what lawyering entails,
little inclination towards self –reflection, limited client-centred skills and a
tendency to be overwhelmed by facts”.24
Given that clinic usually occurs in the latter years of a law degree, this is
particularly unflattering to both our students and our pedagogy. The Australian
reality appears to be that students come to clinic with a very small bag of
useful equipment for practice – if they have any practice implements at all.
Traditional law teaching does little to equip them to “jump the chasm” between
law and fact. They cannot understand why, in their clinical work, the law
always appears reasonably clear and consistent, but the facts as presented to
them by clients are a mishmash of events, recollections, half-truths and
opinion all presented without chronology or, often, much coherence. Nothing
they have learned in law school has equipped them to be fact-gatherers and
to sort through this mass of information. Often they cannot even begin to
conceive where information provided by a client fits into the knowledge they
have acquired during their law studies.
Clinic, however, provides students with these necessary practice tools, but
this is not the limit of the clinical method. It is so much more than this. Long
ago, clinical teachers threw off the academically elitist accusations that they
were teaching “Introduction to Form Filling”. Clinic provides an excellent
opportunity to offer the dual processes of action and reflection. “Action” in
legal clinic in Australia does not mean just putting an uninitiated student into a
room with a client and hoping for a good result. Our clinics are gradually
becoming increasingly sophisticated and are supported by methodical,
comprehensive and pedagogically sound skills-based teaching. There are
many articles and readings available about clinical pedagogy which can (and
should) be read by supervisors in order to enrich their understanding of
clinical teaching methods. A short list appears on the next page which may be
helpful.
Õ Õ Õ Õ Õ Õ Õ
Ross Hyams
Convenor, Legal Practice Programs
Faculty of Law, Monash University
2014
24
Burg E, ‘Clinic in the classroom: A step toward Cooperation’ (1987) 37 Journal of Legal Education
232 at 248.
30
BASIC CLINICAL BIBLIOGRAPHY
.
•
Barnhizer D (1990) ‘The University Ideal and Clinical Legal Education’
35 N.Y.L. Sch. L. Rev. 87.
•
Brayne H, Duncan N & Grimes R, Clinical Legal Education - Active
Learning in Your Law School, Blackstone Press Ltd, London, 1998
•
Campbell
•
Campbell S, “Blueprint for a Clinical Program’ (1991) 9 Journal of
Professional Legal Education 121
•
Copeland A (2003) ‘Clinical Legal Education within a Community Legal
Centre Context,’10 Mur ELJ.
•
Curran L, Dickson J & Noone M A (2005) ‘Pushing the Boundaries or
Preserving the Status Quo? Designing Clinical Programs to Teach Law
Students a Deep Understanding of Ethical Practice' 8 International
Journal of Clinical Legal Education 104
•
Evans A (1999) ‘Client Group Activism and Student Moral
Development in Clinical Legal Education’ 10 Legal Educ. Rev. 179-190
•
Frank J ‘Why not a Clinical Lawyer School?’ (1933) 81 University of
Pennsylvania Law Review , 8
•
Giddings J Promoting Justice Through Clinical Legal Education, Justice
Press, 2013
•
Giddings J ‘Clinical Legal Education in Australia: A Historical
Perspective’ (2003) 3 International Journal of Clinical Legal Education,
7
•
Grimes R (2004) ‘Mapping Best Practice in Clinical Legal Education’
UK Centre for Legal Education.
•
Hyams R “Multidisciplinary Clinical Legal Education: The Future of the
Profession” (2012) 37 (2) Alt LJ 103
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31
•
Hyams R & Gertner F "Multidisciplinary Clinics - Broadening the
Outlook of Clinical Learning" (2012) 17 International Journal of Clinical
Legal Education 23
•
Hyams R “Nurturing Multiple Intelligences through Clinical Legal
Education” (2011) 15 University of Sydney Law Review 80.
•
Hyams, R "Assessing Insight: Grading Reflective Journals in Clinical
Legal Education" (2010) 17 James Cook University Law Review 25
•
Hyams R, ‘Student Assessment in the Clinical Environment – What
Can We Learn from the U.S. Experience?’ (2006) 10 International
Journal of Clinical Legal Education 77-96.
J J J J J J