The Integrated Law School Practicum: Synergizing Theory and Practice

• Author: Susan R. Martyn; Robert S. Salem
• Position: Stoepler Professor of Law and Values, University of Toledo College of Law Clinical; Professor of Law, University of Toledo College of Law
• Pages: 715-739

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I Introduction

Traditional law teaching efficiently conveys an impressively broad array of doctrinal law and theory.¹ Clinical law teaching provides the opportunity to learn lawyering skills and apply them to real or simulated client circumstances.² Students learn to organize, understand, analyze, and apply law in traditional courses; they learn how to conduct factual investigation, research, analyze, interview, negotiate, advocate, problem-solve, and resolve ethical dilemmas in clinics.

Yet lawyers know that neither doctrine nor skills alone a lawyer make.³ In practice, we solve real, not abstract problems, translating the language and methodologies of the law to our clients.⁴ Clinical education can provide these real circumstances; the traditional classroom can provide the legal understanding necessary to assist clients in confronting and resolving them. Clinical legal education also has provided valuable pro bono legal services to communities since its inception.⁵ Page 716

This article reports on a successful integration of traditional and clinical methodologies in one law school course. Substantively, the course focused on a specialized aspect of bioethics and law: the legal regulation of decision-making near death. Pedagogically, we combined a traditional two-hour substantive classroom course (taught by Susan) with a one-hour clinical practicum that required students to develop a community workshop about advanced directives (taught by Rob). We had four objectives in mind when structuring the course this way. First, we sought to teach our students the relevant law and the policy considerations that influenced its development. Second, we hoped to instill in our students an understanding of the performance skills needed to apply law. Third, we intended to offer students the opportunity to develop problem solving and practical judgment expertise by engaging them in the process of responding to a person's individual situation.⁶ Fourth, we hoped to provide unbundled pro bono service to workshop participants.⁷

We enjoyed our collaboration and believe that we satisfied these objectives. But we also learned some unanticipated, valuable lessons about the challenges of blending doctrinal and clinical pedagogy. Inviting workshop participants to raise legal questions and draft advance directive documents in personal meetings also forced us to confront intriguing questions about the scope of client- lawyer relationships in the context of a rich educational experience.

This Article describes how we balanced our desire to teach substance, skills, and judgment; our hope to offer pro bono service; and our need to limit the scope of the client-lawyer relationship in the workshops. In Part II, we address the motivation and theory Page 717 behind our development of this course. In Part III, we recount the evolution of our course structure and pedagogy during its first and second years. Part IV describes the structure and experience of the workshops, where our ethical dilemmas occurred. In Part V, we evaluate the educational merit and community service outcomes of our endeavors. Part VI concludes with our recommendation that law school faculty consider similar collaborations refined by our experience. We also articulate what we believe to be the best way to effectively reconcile educational and community service goals: first, by providing limited representation (unbundled legal services) in the workshops with full disclosure and the informed consent of the participants, followed, secondly, by classroom discussion of the more complex issues inevitably raised by workshop participants in the course of their personal meetings with students.

II The Motivation And The Theory

Our law school practicum was intended to teach students the interrelationship between doctrine, skills, and practical judgment by affording them the opportunity to apply recently learned legal concepts to the individual circumstances of workshop participants. We counted on these participants to share their personal understanding of the substantive law as well as their own individual circumstances with students. We hoped this would nudge our students toward developing the "wisdom of practice,"⁸what commentators also refer to as "responsible engagement with solving clients' legal problems"⁹ or "forward-directed . . . 'data driven reasoning.'"¹⁰

Students in traditional law courses receive little or no feedback about the level of their learning or their ability to use what they have learned until the very end of a course¹¹ or later, when they Page 718 attempt to review the material for the bar examination¹² or use it in practice.¹³ Students in clinics receive continuous feedback from clients and supervisors,¹⁴ but clinics require a tremendous investment in student supervision that many schools simply do not have.

Over the past thirty years, clinical legal education has confronted many of these challenges.¹⁵ Clinical simulations have Page 719 been integrated into traditional law classes.¹⁶ Clinical courses also have joined law students with students from other graduate disciplines, such as social work, to encourage interdisciplinary study and service.¹⁷ Externships, which place students with field supervisors in community settings, extend the reach of clinical experience, but depend on the good will and motivation of busy practitioners for supervision. A handful of clinical courses have experimented with community workshops as an opportunity for teaching more than simulated skills with a controlled, unbundled, and less-than-full client representation.¹⁸ A few law schools also Page 720 have offered clinical add-ons to traditional courses, which may or may not be required.¹⁹ These clinical offerings avoid shifting the balance of control from the professor to the field supervisor and can extend the reach of clinical experiences to students by demanding less one-on-one supervision.

Our interest in this project came from our past experience as lawyers and law professors. Susan, the experienced, traditional classroom teacher, has taught Torts, Legal Ethics, Health Care Provider Liability, and Bioethics for twenty-five years. She serves on several ethics committees in local health care organizations and speaks to community groups about various topics including bioethics and the need for advance directives. She has written several legal ethics books,²⁰ as well as dozens of law review articles on various bioethics and legal ethics topics,²¹ and has authored two amicus briefs in the Supreme Court right to die cases, Cruzan v. Director²² and Washington v. Glucksburg.²³

Rob has been a clinical legal educator for thirteen years. He has been increasingly involved in health care law and collaborates with health care facilities and professionals on a variety of projects. He serves on the ethics committee of a local hospital and Page 721 speaks frequently on topics related to health care law. Rob regularly incorporates community educational workshops into his clinical teaching as a means of providing both rich educational opportunities for students and community access to unbundled legal services. One such workshop, co-sponsored by a local television station shortly after the death of Terry Schiavo, gave students the opportunity to assist approximately 1,200 people execute living wills and durable powers of attorney for health care.

Our quest for a better pedagogical model led us to design an integrated course where we each played to our respective strengths: students would learn doctrinal law from Susan and present community workshops about advance directives under Rob's guidance.²⁴ Teaching separate course components enabled each of us to rely on our previously-honed traditional and clinical teaching methodologies. Old dogs did not have to learn new tricks, but we found that, in spite of ourselves, we learned from each other as well as from our students. Susan conveyed to students the value of rigorous traditional teaching as a prerequisite to confronting actual practice settings. She also wanted to offer students the occasion to develop professional judgment by communicating difficult legal concepts to a lay audience. Rob's previous television station workshop reinforced the value of providing students with some theoretical and historical context before a live-client experience. He observed that many students in the television workshop appeared confounded by questions from workshop participants who sought a rationale for the terms and conditions imposed by legal forms. In designing the course, we also sought to provide a discrete or unbundled legal service: assistance in completing and executing individualized advance directives. Like others before us, we believed that offering a limited yet useful legal service as part of a community workshop could provide a necessary and often neglected legal service.²⁵

As far as we have been able to determine, however, our integration of a clinical community workshop with a traditional Page 722 doctrinal course was the first such effort to require a theoretical course immediately followed by a practicum that forced students to translate what they had just learned in a traditional course immediately into language useful to a lay audience in a clinical workshop. The workshop offered students the opportunity to learn about the reality of applied doctrinal law as well as the range of individual circumstances the law shapes and regulates. It also prodded them to move beyond novice stages of distanced learning of formal concepts toward competent practitioners capable of...