THE CLINICAL METHOD SEEN AS A THREE-PART PROCESS: DEVELOPING ACTION PLANS, A STRUCTURED EXPERIENCE, AND REFLECTION

All clinical teaching involves some form of experiential learning that can be described in a three-step process:

1) the student learns to formulate an action plan;

2) the student enacts that plan through a structured experience;

3) the student reflects about the experience and modifies future action accordingly.

The clinical process is thus a blueprint for professional growth. This paper will examine how the clinical teacher plans, enacts and modifies this type of learning experience for his or her students. After providing a brief theoretical framework for why this three-part process is used, the article will describe factors used by clinical teachers in establishing the process in their clinical courses.⁴⁶

4647. Legal Education and Professional Development -- An Educational Continuum, 1992 A.B.A. SEC.

LEGAL EDUC. & ADM. B. 243 (known as the "Mac Crate Report").

Experiential learning is thought to match quite closely maximal learning experiences for adults. There are numerous psychological, educational and management studies on how adults, and more specifically, professionals, learn. ⁴⁷

While these studies are very complex, one major finding is that adults learn best when faced with questions that arise in real-life experiences followed by opportunities to answer and reflect upon those questions. Moreover, learning does not happen in the same way for all people. Individuals have different approaches to learning that influence how they learn most optimally. Good teachers, then, provide context-based learning opportunities, allow students to direct themselves and provide different kinds of learning environments. ⁴⁸ Donald A. Schon, a social scientist at M.I.T, has specifically applied learning theories to study how professionals can improve during their careers. In his book, "The Reflective Practitioner," Schon advocates a process he calls "reflection-in-action," in which a student professional learns by engaging in ongoing dialogue and discussion with an experienced professional about the experiences the student undertakes. These and other learning theories form the theoretical justification for much of clinical law teaching. While not all clinical law professors use the same terms in describing what they do, most clinical law experiences are structured to take advantage of experiential learning and employ a variety of teaching methods.

The team nature of many clinical courses compounds the difficulty of review in a system that evaluates individuals, which is typical of most tenure and review processes. Typically, non-clinical law professors have the discretion to determine their course structure. Many clinical courses are team-taught or are part of a larger program such as an in-house clinic law office, an extern program or a trial practice program. In many instances, class design choices such as choice of experience provided, whether forms are used in the classroom, the nature of office procedures or in-class content are made by several involved clinicians, dictated by long-established consensus, or are the result of other institutional factors. The reviewer must be aware of the decisions made by the individual faculty member under review as well as those course components over which she or he has no control.

A.

Formulating an Action Plan

Every clinical law professor requires students to engage in some type of planning process.

Plans are developed by combining lawyering theories, practical information, and legal research. The professor will often expose the students to theories about the lawyering aspects the course is designed to teach. This may be done through textbook reading

assignments, n21 a variety of legal and social science articles, class lectures or discussions and guest speakers. Other clinical professors prefer to allow the student to discover

underlying theories through an experiential process.

47 See Frank S. Bloch, “The Andragogical Basis of Clinical Legal Education”, 35 VAND. L. REV. 321, 328 (1982).

48 Donald A. Schon, “The Reflective Practitioner” (1983).

Clinical teachers have different approaches to the role of theory in the development of professional skills and values. Some clinicians assign materials that describe a particular theory of the skill or value early in the course and then require the students to emulate that theory. For example, a clinician who wants the student to learn "client-centered"

counseling might assign the Binder, Bergman & Price text and then ask the students to try to emulate that counseling style during the experiential phase of the course. The professor's action plan should clearly inform the students that they are required to perform "client-centered" counseling, and the student's action plan should list how the student intends to implement "client-centered" counseling. Another clinician might expose the students to a variety of counseling models⁴⁹ and ask the student to choose one model or to plan the counseling session based upon several theories.

A third approach would be to forego the exposure to counseling models and ask the student to plan the counseling session based upon the student's own ideas. Under this approach, the student may be subsequently exposed to counseling models after she or he has counseled the client and developed ideas about what does or does not work.

Such plan development extends to a variety of skills or values the course is designed to teach. Typically, clinicians will require students to develop plans for some or all of the following skills: interviewing clients and/or witnesses, counseling clients, drafting pleadings, engaging in negotiation or mediation, preparing for a trial or hearing or

developing alternative solutions to help the client. The focus of the planning will reflect the focus of the course. For example, in a course where the professor emphasizes the process of litigation, the clinician might create opportunities for students to spend most of their time planning litigation activities -- discovery, pretrial processes, trial, etc.

In a process-oriented course, the students might not spend very much time learning the underlying policies, history, or legislation in a specific area of law. Rather, the processes of litigation would be more central. By contrast, in a course in which the professor wants the students to primarily learn initial interviewing skills, the clinician should create many opportunities for students to plan for and practice those skills; such a course might involve students in numerous intake interviews, for example, rather than court cases. n25

A third type of clinical course focuses on learning substantive law, and the clinician would arrange an experience in which students have opportunities to learn that law. In this type of course, students concentrate on the area of law, underlying policies, history, case law, and legislation. Students in such a course will spend more time developing action plans that are specific to that type of law. For example, in an elder law clinic, the professor might require all of the students to learn the details of how to prepare different kinds of estate planning documents and what the underlying policies are behind the various documents. ⁵⁰

49 David A. Binder., “lawyers as counselors: a client-centered approach” (1991).

50 There is not consensus about which of these models is better or worse, or even whether one is better or worse. The Mandel Legal Aid Clinic at the University of Chicago advocates this approach

There are several methods to help students develop action plans. For example, some

clinicians favor checklists, forms or protocols to ensure their students learn to think through the same issues in every case.

This approach teaches students to systematize their thought processes and use logical, rational procedures in each and every case so that nothing is overlooked. Other clinicians require students to create plans from ground zero. This approach encourages students to learn how to plan by relying upon their own resources and ideas. This method may result in more diverse approaches to problem solving. The choice of approach is less important than the planning which is fostered, although the approach used should match the professor's teaching philosophy.

The discussions between a student and his or her faculty supervisor is the core of the clinical experience. The nature of supervision discussions varies depending upon whether a student is in the planning, experiential, or reflection stage. During the planning stage, the clinical teacher engages the student in a critical exploration of the choice process of

planning. That process involves assisting the student in generating a wide range of options, forecasting likely outcomes depending upon what choices are made, prioritizing actions, and setting deadlines for action. A supervision session in the early stages of planning would likely end with a task list for the student to pursue but no clear resolution of the plan. Later sessions would involve the student explaining why certain choices were selected (by the student together with his or her client). This process sets the stage for reflective discussions later on.

Consistent with the learning theories discussed above, it is generally helpful to ask the students to discuss how to plan, rather than telling the students how to do it. These types of discussions can take place in a variety of ways. Students may have individual meetings with the supervisor or meet in pairs. These sessions, usually referred to as supervision meetings, typically occur on a regular basis. Additionally, the regularly scheduled class meetings may be used to discuss planning. Another method is case-rounds, in which students present issues from a case to a larger group of students for discussion and feedback.

There are a variety of planning devices which clinical teachers make available to their students. These devices might include case planning charts, trial notebooks, protocols, forms, and banks of previous student or faculty plans. These range from "fill-in-the-blank"

type devices to more general, descriptive devices. Other faculty members ask their students to generate their own planning in a more free-form style. While approaches vary widely, there should be some evidence that the faculty has some form of written guidance to assist students in planning, even if that written guidance is in the form of questions the student should consider rather than a protocol.

B. Enacting an Action Plan Through a Structured Experience

In any clinical course, the catalyst for learning is the experience component.⁵¹ Clinical

51. Jerome Frank, Why Not A Clinical Lawyer School, 81 U. PA. L. REV. 907, 916-21 (1933).

professors make many choices when designing the experience component of the course.

The experiences offered should allow the students to practice the skills or apply the values that are the focus of the course. While students will practice many skills and apply values that are peripheral to the focus skills and values, priority should be given to those

experiences that are most likely to offer the student the opportunity to practice the focus skills and values. For example, a federal litigation clinic might have as its primary focus the skills of designing case theories and implementing the pretrial phase of the case consistent with those case theories. In such a clinic, the fact that most cases never go to trial during any given semester should not be a concern, provided the students have

sufficient opportunities to take a new case and develop a case theory, and work on pre-trial discovery pleadings, motions and the like.

Another federal litigation clinic might prefer to focus on federal trial work. In such a clinic, the professor might arrange to take cases only after the initial intake interviews and

preliminary administrative complaints are drafted. The professor may have several cases in trial mode at any given point in time. Other skills that may serve as the course's focus include: transactional work, mediations, diagnosis of legal problems, interviewing, counseling, negotiations, or community lawyering. As an alternative, the course could focus on a general lawyering experience, broadly defined.

Another goal might be to have students learn about professional values, such as mechanisms that provide legal assistance to the poor, ethical and moral issues, or competency issues. Cases chosen should allow students to experience the practice of the chosen skills or the judgment involved in choices based upon selected values.

Whatever the focus, students should be required to experience challenging professional situations that require decision-making and the exercise of judgment. The prevailing model is one in which the student engages in the primary lawyering tasks that are central to the experience. They engage in such tasks as conducting client interviews, appearing in court, and drafting documents. The faculty member provides useful critique and ensures that the student thinks through the relevant considerations prior to performing important tasks. Thus, in such a clinic, one might see moot performances of a critical trial or negotiation session prior to the actual event. Much of this questioning and critique

generally takes place in one-on-one supervision sessions, but occasionally similar activities occur in classes or "case rounds" sessions. Most clinicians hold the view that optimal learning takes place when the student assumes primary responsibility for analyzing the issues, making judgments, and executing the plan.

However, there are some programs in which the students "second-chair" faculty members or more experienced students. In these programs, the professor performs more lawyering tasks while the students do much of the background work. The students observe tasks such as interviewing a client or appearing in court. This type of clinic operates on the

assumption that students can learn better by observing excellent lawyering than by

engaging in all tasks by themselves. The students should observe the professor's work and be given an opportunity to critique it.

A third approach mixes the two methodologies. The students are given primary

responsibility for most tasks. In certain situations, however, the faculty member assumes responsibility in order to provide a model for the student. ⁵²

When reviewing clinical teaching, it is important to know which philosophy is adopted by the clinician. The reviewer can then assess how well the clinical teacher is fulfilling the chosen model. The reviewer should ask additional questions if the students are not assuming most of the primary responsibility for lawyering tasks to ensure that such an occurrence is by design.

Other considerations are relevant in assessing the quality of the experiences offered in the clinical course. For example, the skills the student learns should be relevant to current practice standards. It is incumbent upon the clinical professor to ensure that the experiences the student engages in are not outdated due to changes in law or practice. For example, in at least several western states, family law underwent drastic changes between the mid-eighties to the mid-nineties. Many open issues of pleading and practice became

standardized by local court rules, forms, and procedures. If a clinical teacher chose a family law practice to emphasize pleading skills in 1980, a 1998 family law practice might not serve those purposes. The clinical law teacher must evaluate whether student experiences continue to serve the purposes for which they were originally chosen, or whether new purposes are more in line with current or emerging legal practice.

Another question related to the quality of the experience is whether there are adequate support systems in place for the student to practice quality lawyering. The student should have access to current legal resources in the areas in which he or she is practicing. These resources should include local and state primary research materials as well as commonly used secondary sources. The student should have ready access to other professionals in the field and information and referral resources for clients. There should be adequate support for basic office functions such as producing written work and answering telephones as well as more specialized assistance such as computer applications and expertise about the specialty areas of law in which students work. Some clinics hire social workers to help students find resources for clients that inexperienced lawyers would not find on their own and to train students to work with non-legal professionals. The reviewer should once again be aware of the extent to which the allocation of these types of resources are within the control of the individual faculty member under review.

Additionally, the clinic must work out a plan to integrate student work into local judicial or administrative legal systems. Clinical teachers consider numerous factors when deciding how to participate in the legal system. They include: whether certain types of work can integrate easily into the legal practice systems within the confines of the educational term;

whether certain work will further law reform goals of the clinical program; political

considerations such as the effect of the work chosen relative to the needs of the local bar or the sensitivities of local judges to having law students in their courtrooms; and whether

52 . See, e.g., Minna J. Kotkin, Reconsidering Role Assumption in Clinical Education, 19 N.M. L. REV. 185, 193-94 (1989).

indigent clients need a stronger or, in some cases, more confrontational voice.

Finally, the clinical professor must monitor the students' caseloads. Do the cases assigned to students give them enough, but not too many, worthwhile experiences that emphasize the chosen skills? There is great diversity among clinics about the optimal caseload size.

No specific number can be used as a benchmark because case types vary widely. For example, three students might work an entire term on one federal class action case in one clinic, while one student could competently handle five estate-planning cases in another.

Moreover, clinics are offered for different amounts of credit, resulting in widely divergent allocations of time between students in different clinical settings. Attention should be paid to whether students have enough cases to have an experience worth reflecting about, but not too many cases to have no time for reflection. Substantively, the cases should be challenging without being too complex. These are issues that require frequent fine-tuning by the professor.

C. Reflection

The third step to good experiential learning is reflection upon the experience. Most clinical educators consider the reflection stage to provide the major source of learning. The

professor should guide the student through a process of thinking about how well the action plan succeeded: did the student follow the plan as outlined? If not, why? If so, did it work?

These sorts of questions form the crux of the post-experience supervision process.

Thus, reflection is a feedback loop, taking the student back to a new action plan while learning from both good and bad choices. The process demands that students integrate the theory, the experience and real-life events to learn how to build upon strengths and improve upon weaknesses. Many clinicians find that rigorous reflection is the most important aspect of the learning experience. It is through reflection that clinical teachers instill a life-long habit of professional self-development and growth. ⁵³

Clinical professors must make choices about guiding a student through the reflective process. One cannot go back and relive every moment of the experience, nor would an emphasis on minutiae be useful. n40 The clinical professor must help the student choose which aspects of the experiences are likely to yield helpful insights. These choices will be

Clinical professors must make choices about guiding a student through the reflective process. One cannot go back and relive every moment of the experience, nor would an emphasis on minutiae be useful. n40 The clinical professor must help the student choose which aspects of the experiences are likely to yield helpful insights. These choices will be