Taylor, Lyndal --- "Skills Skills - Kind Inclusion And Learning In Law School" [2001] UTSLawRw 8; (2001) 3 University of Technology Sydney Law Review 85

Skills

Skills—Kind Inclusion And Learning In Law School

Lyndal Taylor[1]

THE PURPOSE OF this paper is to review in one piece the variety of writings on skills training in an undergraduate curriculum in law school in Australia. This paper has five parts.

The first part places legal education in Australia in context. Recognition needs to be made of the increase in students training in one jurisdiction and practising in another. The second surveys a range of conceptions of the role of a university legal education. The third reviews the range of skills that major reports and authors have recommended for inclusion in the undergraduate curriculum of a law school over the past decade. The fourth part considers models for integrating skills training into the law school curriculum. The final part reviews some of the teaching and learning methodologies that have been adopted to best ‘teach’ skills.

This paper aims to provide a resource for reflective consideration by a faculty desirous of improving the skills component of its undergraduate curriculum.

Much has been written over the last 15 years on the issue of skills in an undergraduate law curriculum. Great thought has been given to the benefits of skills training and means of teaching skills. This paper focuses on five related issues.

The first part provides the context of legal education in Australia and the second part considers whether skills should be included in the law school curriculum. The third relates to skills that should be included in the degree. The fourth part asks what way in which these skills can be incorporated into a law school curriculum. Finally, part five considers by what means it is best to ‘teach’ these skills.[2]

I: Legal education in Australia

ALRC News reports on the release of Managing Justice: a review of the federal civil justice system[3]:

The ALRC’s four-year review of the federal civil justice system – the largest inquiry of its type ever conducted in Australia – has concluded with the launch on 17 February 2000 by Attorney-General Daryl Williams AM QC MP of its final report ... The report focuses on practice, procedure and case management in federal civil courts and tribunals, such as the Federal Court, Family Court and Administrative Appeals Tribunal. The 750-page final report also makes recommendations on issues such as costs, delay, legal ethics, legal and judicial education, judicial accountability, alternative dispute resolution, legal aid and expert witnesses.[4]

The ALRC entered new waters in its review of legal education in Australia. The report offers a comprehensive historical perspective on legal education in Australia, adopting an international comparative approach. The report follows on from, and considers the submissions received following, Issues Paper 21. The ALRC recommendations present a balanced response to the views of the stakeholders involved in legal education.

Another major issue that the ALRC had sought submissions on was the proposal to establish a body for formal national accreditation of law degrees to be called the Australia Council on Legal Education (ACOLE). However, after reviewing submissions and in light of the diversity of opinion expressed, the ALRC decided not to recommend the establishment of the ACOLE, instead making a suite of recommendations including:

the encouragement of an emphasis upon legal ethics and high order professional skills, without derogating from the responsibility law schools have to provide students with a grounding in substantive law
the introduction of a regime for quality assurance in Australian law schools
another national discipline review, to update and build upon the Pearce Report[5]
the establishment of the Australian Academy of Law
an approach which permits diversity in the delivery of Practical Legal Training programs
ensuring the participation of practitioners in approved high quality professional development programs.

Perhaps the recommendation that could most alter the legal education landscape in Australia is that:

The Federal Attorney-General should facilitate a process of bringing together the major stakeholders (including the Council of Chief Justices, the Law Council of Australia, the Council of Australian Law Deans, the Australasian Professional Legal Education Council, and the Australasian Law Students Association) to establish an Australian Academy of Law. The Academy would serve as a means of involving all members of the legal profession – students, practitioners, academics and judges – in promoting high standards of learning and conduct and appropriate collegiality across the profession.

This recommendation followed upon a lengthy discussion in the report on the evolution of the legal community in Australia. As law degrees have only emerged in the last three decades as the dominant form of entry into the legal profession, there has been a growing disjuncture between the academic and practising sections of the legal community. The suggested objects of the Australian Academy of Law according to the proposal developed by Professor David Barker, Dean of the Faculty of Law, University of Technology, Sydney are:

to promote excellence in and encourage the advancement of legal practice in Australia
to promote collegiality among members of the judiciary, legal profession and law teachers
to promote excellence in legal research and the publication of contributions to legal knowledge
to promote the professional development of members of the legal profession
to promote views relating to legal reform to the Government, community and other professions
to promote high standards of ethical conduct within the legal profession.

The extent to which the ALRC recommendations are introduced will largely depend upon funding and the support of the respective stakeholders. Law schools may well find it a difficult task to introduce more skills into the curriculum under current funding arrangements. It may take another national discipline review by the Federal Government Department of Education, Training and Youth Affairs to provide the catalyst for such government support.

Certainly, the recommendations of the ALRC indicate that legal education in Australia is entering a new and changing era. Such challenges have been faced in other jurisdictions. Australian legal education faces the challenge of maintaining international competitiveness by forging forward with the insight that the ALRC report provides.

II: Conceptions of legal education

There appears in the literature to be three main conceptions of legal education. These are that:

law school provides a liberal education
law school is the place to train lawyers
a mixed model that adopts an approach of intellectual training in the context of university with the expectation that most students will practise law.^{6 ii}

LAW SCHOOL AS A LIBERAL EDUCATION

Practitioners and academics have differing views on the appropriate balance between theory and practice.[7] Schlegel comments that ‘the importance of theory for legal education is simply that it is with theory that we organise experience’.[8] In concord, Kavanagh recommended that legal education should ‘discard the notion that the theory of law must be grounded in practice’.[9] Balmford argues that ‘law school is trying to provide a foundation of theory on which practical and further education may build, and which will provide a framework of reference throughout a lawyer’s professional life’.[10] In fact, Kahn-Freund does ‘not believe that any student of law can understand his (sic) subject nor do[es he] believe that legal education deserves its name unless law is taught in the frame of a univeritas iterarum or scientiarum, that is in conjunction with other disciplines, and this can only be done in a University’.[11]

Commentators have criticised the current style of legal education in Australia for its lack of theoretical perspectives.[12] Ziegert considers that ‘legal education operates nominally as higher (tertiary) education under the institutional control of the universities but factually as a substantial part of legal training under the formal and informal control of the legal system in the form of the legal profession’.[13] Bok in commenting on legal education in the US stated that:

Universities can also prepare people with a broad view of their profession and with skills to help address its problems. Unfortunately, most professional schools have done little to meet this challenge. They have concentrated on training practitioners for successful careers while failing to acquaint them with the larger problems that have aroused such concern within society.[14]

Tomain and Solimine suggest that ‘until we connect skills programs to a sound, coherent normatively grounded theory of lawyering, skills training will remain an empty technical exercise’. It is questioned whether skills training can avoid the ‘hollowness of instrumentality’.[15]

Supporters of this model of legal education also point to the recent trend that many law students intend to embark on careers other than in the legal profession.[16]

Statistics cited by Duncan indicated that 62–64 per cent of law graduates did not enter legal practice in England.[17] Saunders reports that in 1993 that there was a huge demand for law places in England and Wales but that this dropped significantly in the middle 1990s.[18] A recent survey found that two-thirds of graduates had intentions of becoming solicitors and one-tenth intended to be called to the Bar.[19]

Armytage and Vignaendra’s extensive research into career intentions of Australian law students found that 78 per cent intended to undertake some form of practical training to lead to admission after completing law school.[20] This differed according to states with a high of 27.2 per cent of students in Queensland and a low of 10.2 per cent of students in South Australia not intending some form of post law degree professional training. This may reflect many issues, including perceived employment opportunities. Regardless, it is clear that on average only three in four law students plan to work as legal practitioners. The ALRC commented on the trend that law is becoming a generalist degree and that there is a reduction in the proportion of graduates entering the legal profession.[21]

A similar trend has been found in the US with an increase in law graduates entering non-traditional employment. Peshel reports that there are 300 professional careers for which a law degree can be an asset and that in 1992 the percentage of graduates entering non-traditional employment increased from 5.2 per cent to 8.9 per cent.[22] Ziegert comments that society needs more rather than fewer legally trained persons due to the broader spectrum of employment where legal training is valued.[23] Costonis suggests that the presence of skills courses has little impact on hiring decisions.[24] This was borne out by the extensive survey undertaken by Garth and Martin of Chicago law firms where little or no value was placed on courses taken in litigation, moot court, negotiation, counselling or substantive experience in making hiring decisions.[25] The predominant factors were communication skills, class rank, general appearance and demeanour and the law school attended.

Gasteen succinctly summarises the arguments against teaching lawyering skills in the undergraduate law degree as:

the potential conflict with the spirit of free enquiry
the threat to the autonomy of the school by the profession’s involvement, making it a ‘trade school’
a need to provide a general education
the shortage of funds to teach skills
the difficulties in designing curricula
that skills can only be learnt in practice.[26]

This is consistent with Costonis argument that ‘Legal education’s comparative instructional advantage over law practice lies in doctrinal and general-education instruction, not in skills training’.[27]

LAW SCHOOL IS FOR TRAINING LAWYERS

Whereas legal education in Australia has commonly been criticised for its lack of theoretical perspectives, law school has often been criticised in the USA for failing to provide a sufficiently practical education. MacCrate argues that law teachers need to embrace their role in preparing lawyers for practice.[28]

In Australia and the UK it is generally expected that law students will practise in the jurisdiction in which the degree is undertaken. This provides justification for a ‘coverage approach’ of black letter law. In contrast to the US, law is not necessarily a postgraduate program, although there is a strong trend to encouraging double degrees.^{29 iv} Direct entry students^v may not necessarily be undertaking law for the purpose of becoming a lawyer. However, Taylor in a survey of law students at the Queensland University of Technology found that a desire to become a lawyer was the most common reason given by students for entering law school.[30] However, the next most significant reason was that law gave a number of career options, and among the top seven reasons was that students ‘didn’t know what else to do’. A survey in England found the primary reason was an interest in the nature of the work and secondly a career in law was considered to suit the talents of the student.[31]

In Australia, the issue that many students are unable to enter an over-full profession has been raised.^vi Those Australian graduates who do wish to become legal practitioners are required to complete either articles of clerkship or a practical legal training course.[32] In England, most intending solicitors are required to complete the Legal Practice Course.[33] There is a view that the cost of the Legal Practice Course is a limit in itself on the number of practitioners entering the market. The Australian and UK models very much meet with the continuum concept of legal education put forward by the Ormrod Committee in the UK in 1971 of there being an academic, vocational and professional stage of legal education.

The more recent First Report on Legal Education by the Lord Chancellor’s Advisory Committee on Legal Education and Conduct (ACLEC) reinforces the argument that legal training should be a continuum but suggests that greater integration should occur.[34] The report views the ‘artificially rigid’ separation of the stages of legal education as a ‘serious structural weakness’ of the system of legal education.[35] Twining suggests that such structure was ‘introduced more for reasons of political convenience than on sound theoretical or educational grounds’.³⁶ Jackling considers that the ‘stages are merely useful descriptions of different aspects of training ... a way needs to be found of integrating other aspects of training within academic training at universities to a greater degree’.[37] The ALRC in its Issues Paper Rethinking Legal Education and Training took the approach of ‘legal education being a continuum involving theory and practice at every point’.[38]

ACLEC recommended that after a qualifying degree or diploma in law all law students undertake a period of Common Professional Studies. After this licentiate stage, students are to undertake either the Legal Practice Course or the Bar Vocational Course followed by a period of in-service training. ACLEC recommended that intending barristers undertake an Advanced Advocacy Course and that intending solicitors undertake a Professional Skills Course before finally being admitted to practice.

Scragg comments on the changes in Practical Legal Training in New Zealand and recommends a similar model to be undertaken over three years after completing a law degree, starting with a full-time course in transactions covering commercial and property law, and litigation.[39] Students then seek employment and undertake an advocacy course. Finally, before attaining the right to enter into full practice, trainees would complete a skills course in interviewing, advising, negotiation, writing and drafting.

In the USA, admission is governed by regulations of state courts and bar associations. To be admitted to practise, applicants must be of good moral character, be resident in the state, have a qualifying degree, and pass a Bar examination. Only a few states allow admission without a law degree.[40] Notably, there is no formal requirement for a period of apprenticeship, which characterises the Australian and British experience.[41]

The US MacCrate Report, Report of the Task Force on Law Schools and the Profession: narrowing the gap, legal education and professional development — an educational continuum, also suggests that ‘the skills and values of the competent lawyer are developed along a continuum that starts before law school, reaches its most formative and intensive stage during the law school experience, [and] continues throughout a lawyer’s professional career’.⁴²

Myers reports comments by Dean of New York’s Law School Harry Wellington that law academics need to learn more of what practice is really like and less legal philosophy.[43] Edwards contends that the legal academy has a growing interest in abstract theory and less interest in practical scholarship.[44] Robert Stein, then Executive Director of the American Bar Association, commented that ‘the conflict between the broader academic

discipline model of legal education and the narrower professional model ... will continue and, indeed, intensify in the years immediately ahead’.[45] Tsamenyi and Clark suggest that in the Australian context this is due in part to political pressures on law schools to ‘cater for a host of diverse groups in society’.[46]

Stein comments that ‘law schools are being pulled simultaneously in two directions ... Legal scholars are fiercely debating the proper place in legal education for the traditional case method of legal education, as opposed to the teaching of lawyering skills and values.’[47] Myers comments that legal educators have long disagreed on the law school’s function, with some wanting to teach students to think and others wanting more vocational training.[48] However, Nathanson considers that ‘As legal educators, we have the task of making competent lawyers out of law students’.[49]

The Pearce Report in Australia reported that 63 per cent of law students surveyed agreed with the statement ‘The course did not adequately relate theory to practice’.[50]

Steusser provides ‘six important reasons to teach skills in law schools’:

to complement the teaching of substantive law
to introduce students to the legal process
to humanise the law
to introduce the students to basic interpersonal skills
to have students engage in high level problem solving flowing from ‘real’ cases
to gain a better sense of professional and personal responsibilities.[51]

THE MIXED MODEL

Academics holding to this conception consider law school to be a place of intellectual training, but also a place to train students in the ways of being a lawyer. White considers that the ‘starting point would be to conceive of legal education not as professional training alone but as an education of the individual mind ... this in turn might enable us better to perform our lawyers’ functions of cultural criticism and transformation’.[52] Hunter considers that ‘the academy has two responsibilities: to teach the practices of the real world and submit those practices to vigorous challenge and examination’.[53]

Historically in Australia, ‘The law faculties, although situated in universities, were generally as adjuncts to the legal profession rather than truly academic institutions dedicated to liberal educational aims’ as until the early 1960s law teaching was dominated by practitioner part-time teachers.[54] However, now the trend is towards law becoming a ‘generalist’ degree.[55]

Leech reports the comments of David Weisbrot, then Commissioner at the NSW Law Reform Commission, that a more generalist approach to legal education is required.[56] This required law schools to promote intellectual depth whilst also having a practical, skills-oriented approach.[57]

Sarat comments that the ‘failure of law schools to train lawyers to be sensitive and responsive in their dealings with clients has important consequences for the legal system as a whole’.[58] Stier calls this ‘relational lawyering’ which is the kind of lawyering that values the lawyer-client relationship and is mutually respectful.[59] Tomain and Solimine fear that ‘skills training ignores moral education’ but offers the suggestion that skills training could present an opportunity for moral education.[60] Webb praised ACLEC for identifying the issue of professional ethics within the academic stage of legal education.[61] By ‘investing in the education of lawyers in their client-serving roles, law schools can do something concrete and positive in response to the public’s diminishing respect for the law and the increasing malaise in the legal profession’.[62]

Goldring argues that it should not be the primary objective of law schools to produce lawyers.[63] Conversely, students not intending to practise would still benefit from a legal education not solely based on legal doctrine.[64] Gold argues that ‘skills are not frills’ as ‘learning skills is one way to promote personal and professional growth for life, for it teaches us how to learn adaptively’.[65]

A law teacher’s conception of legal education will influence his/her view as to the validity of integrating skills into the law school curriculum. This issue will be returned to in Part Five. Hunter comments on the pressure on law schools in Australia in the 1980s to enhance a law graduate’s usefulness to a law firm.[66] She comments that with rising university fees there is pressure to provide a legal education with ‘vocational security’.[67] Stein considers that ‘Today the debate continues not about whether practical skills training programs ought to exist but how much time, money and academic credit toward graduation they should receive’.[68] Similarly, Le Brun and Johnstone suggest that ‘A main concern in Australia today seems not whether skills should form part of the law curriculum but where they can be located to achieve best effect within the law school curriculum’.[69]

III: A review of the skills that have been recommended for inclusion in an undergraduate law school curriculum

There has been a number of considered recommendations on which skills should be included in an undergraduate law curriculum in the Australian context. This section will review the range of skills recommended. This is not intended to be a ‘list’ exercise. What becomes apparent through this process are three main matters of concern:

No two lists are the same, despite being considered by eminent minds.
A comparison of the lists provides an insight into the skills that are commonly considered of value
The process adopted to integrate skills training will be strongly influenced by the developer’s own opinion as to which skills are important.

BACKGROUND

The Bowen Report on legal education in NSW considered that ‘legal training has not done enough to develop the skills needed even in the early stages of practice and in particularly in the general practice of a solicitor’.[70] The Pearce Report of 1987 considered legal education across Australia and found that Australian law schools were lacking in skills training and recommended that three particular aspects receive greater attention:

oral expression and legal advocacy
drafting, and
negotiation and interpersonal skills.

The Pearce Report also acknowledged the importance of clinical legal education. Significantly, the McInnes and Marginson Report found that the majority of law schools in Australia had taken steps to incorporate these skills in the undergraduate curriculum and that the development of interpersonal skills and advocacy skills in law school had generally improved between 1987 and 1994.[71]

THE RECOMMENDED SKILLS

The following table outlines the range of skills that have been recommended in significant reports and by considered authors. A discussion of those reports follows the table.

Table of Recommended Skills

Skills	Priestley	MacCrate	Le Brun	Gold
Ethics	3	3
Trust accounts	3
Work management	3	3	3
Legal writing	3			3
Interviewing	3	3	3	3
Negotiation	3	3	3	3
Legal analysis	3	3	3
Research	3	3	3
Problem solving		3	3	3
Fact gathering		3	3	3
Fact analysis				3
Communication		3	3
Litigation	3	3	3	3
Reading
Mooting
Computing skills
Self-management				3
Drafting				3
Team work				3

THE PRIESTLEY REPORT

The Law Council of Australia considered requirements for admission to practise in 1994. The Priestley Report recommended the development of the skills outlined in the above table.[72] It categorised the skills into three groups: the legal profession (including ethics and trust accounting); professional skills; and practice and procedure. The Priestley Report recommended that a lawyer be skilful in the following areas of practice and procedure:

litigation (including family law)
property practice
wills and estate management
commercial and corporate practice.

With the move to national admission in Australia, the Law Council recommended that such skills be evidenced before a law graduate could obtain an unrestricted right to practise.[73]

THE MacCRATE REPORT

In the USA the incorporation of skills was the subject of the significant MacCrate Report. This report, commissioned by the Section of Legal Education and Admission to the Bar Association, was issued in 1992. Its mission was to:

identify those skills and values [necessary for professional development], to describe what law schools and the practising bar are now doing to advance the professional development of lawyers, and to recommend how the legal education community and the practicing bar can join together to fulfill their respective responsibilities to the professions and the consuming public.[74]

The MacCrate Report is described as a comprehensive study of lawyers’ educational and professional needs.[75] It provides a ‘Statement of fundamental lawyering Skills and professional Values’ (SSV), identifying the ten skills noted in the table above, and four fundamental professional values:

the provision of competent representation
striving to promote justice, fairness and morality
striving to improve the profession
professional self development.

The earlier Cramton Report listed the core skills that should be part of a skills program as:

interviewing
negotiation
counselling
trial and appellate skills.[76]

The MacCrate Report recommended that the accreditation standard for law schools be amended by the American Bar Association (ABA) to include a requirement that law graduates be prepared to ‘participate effectively in the legal profession’.[77] It is important to reiterate that admission in the USA does not require a period of apprenticeship.[78] With this amendment, law schools not meeting the required standard in skills training would lose ABA accreditation. Since the law school attended is one of the key factors influencing law firms hiring students,[79] this could have major implications for law schools in the USA.

Costonis suggests that the MacCrate Report ‘hews aggressively to a practitioner-oriented concept of legal education’.[80] There are commentators who ‘fear that law schools and law firms are moving in opposite directions’.[81] The report has also been criticised for its ‘unitary concept of being a lawyer’.[82] Loh suggests that the SSV are the skills necessary to be a well trained generalist and argues that focusing on a single set of skills and values does not acknowledge ‘competing visions based on different social priorities, pedagogies, and images of the profession’.[83] However, MacCrate contends that the report ‘recommended no single set of solutions, but rather identified a shared goal for the law schools, the bar, and the bench, working together’.[84]

There are two obvious supports for the McCrae Report’s SSV. The first is the style of legal education in the US. Law school is a postgraduate program, to which it is generally considered difficult to gain entrance,^vii in which success is considered difficult to attain.[85] Many of the law graduates enter practice on substantial incomes with the expectation that they will be able to fulfil the function of a competent practitioner in a short timeframe. Particular rules of the jurisdiction are to be learnt for the Bar exam of each state.[86] With this in mind, one could argue that law school is the place to learn legal thinking and basic practitioner skills, with the acknowledgment that specific rules may be acquired when in practice in the particular jurisdiction.[87] This style of education is not the usual model in other common law jurisdictions.

The other argument for the style of the SSV, as a single set of common skills and values, is that it would be too extensive if it aimed to cover every variation of legal practice, for instance requiring competency in a second language for an immigration lawyer. The need to keep the skills ‘general’ and consequently oriented to ‘general practice’ is apparent. It could be argued that the SSV provide the minimum skills required to enter practice as a lawyer and that each of those skills is necessary for competent practice in any field of law.

OTHER REPORTS

It is interesting to compare McCrate’s SSV with the outcomes of the Working Party on Integrating Skills into the Undergraduate Curriculum in the Faculty of Law at the Queensland University of Technology (QUT). Martin reports that 13 skills were considered of importance (as outlined above).[88] Christensen’s and Kift’s report looks at the four-stage process to implement the integration of skills at QUT.[89] The skills identified are of a more generic nature, divided into three categories of: knowledge and problem solving; ethical and attitudinal; and social and relational. There is a strong emphasis on encouraging the development of independent, critically reflective, ethical life-long learners. A similar list of skills (appearing in the above table) was suggested by Le Brun and Johnstone.[90]

Gold concisely argues that lawyers’ skills fall into three main groups:

advising
persuading
planning.

From these three functions Gold outlines the ten key skills, listed in the table.

A COMPARISON

Skills that are common to all of the above are:

litigation
interviewing
negotiation and dispute resolution.

From this four observations need to be made:

There is a focus on specific skills as opposed to generic competencies.
The influence of semantics must be acknowledged. For instance, when including ‘interviewing’ in the list of skills, the Priestley proposal might well have assumed that this encompassed ‘communication skills’. Similarly, Gold does not include ‘work management’ in his list, but recommends law graduates be skilled in ‘team work’ and ‘planning’, which might amount to the same aptitude.
The commonality between the lists shows an emphasis on litigation skills. This is particularly apparent in the Priestley proposals, not including such matters as fact gathering, communication skills and team work.
The skills are very practice-oriented, rather than ‘life’ skills.

ARE THESE THE MOST IMPORTANT SKILLS?

The MacCrate Report has been criticised for paying insufficient attention to human and service aspects of lawyering.[91] The results of the extensive survey of members of the Queensland legal profession by De Groot, to determine the key characteristics of a competent lawyer, highlights this need for people skills.[92] The ten highest scoring characteristics (out of a possible 65) were:

knowledge of substantive law
a professional attitude to the practice of law
an ability to identify legal issues raised by a fact situation
a commitment to timely communications with his/her client
knowledge of legal practice and procedure
an ability to give clients practical advice
knowledge of professional or ethical standards
a commitment to staying up to date with the law and legal practice generally
concern/care for well-being of clients
being diligent or persevering in his/her work.

McCormack contends in The Terrible Truth About Lawyers that the ‘irony of the three year stint in purgatory (North American Law School) is that it doesn’t have a lot to do with turning someone into an attorney.[93] It has to do only with getting a degree so that later in life one may perhaps develop into a competent practitioner.’ He argues that basic lawyering skills are left out:

interviewing
counselling (giving appropriate advice)
negotiating
drafting
law firm management.

Garth’s and Martin’s extensive research with young Chicago lawyers found that less than 50 per cent of the respondents considered that sufficient attention had been given to gaining the skills of:

communicating orally
gaining others’ confidence
drafting legal documents
analysing and planning a solution for a legal problem
organising and managing legal work
negotiating
fact gathering
counselling
understanding and conducting litigation
obtaining and keeping clients.[94]

Preliminary findings from the Centre for Legal Education’s Career Destination Study suggest that the most crucial skills for the work of a neophyte legal practitioner are time management, and communication and people awareness skills.[95] In contrast it found the skill of resolving ethical dilemmas was rarely called upon.

Yet in the reports cited, the basic skills of counselling and law firm management are still not commonly listed as essential. Baker notes that in the US ‘Law practice management courses in law school remain relatively scarce’.[96]

ADVERSARIAL FOCUS

It could be argued that the skills listed in the table above reflect a very Western perspective on legal practice.[97] Sawer lists a number of Western conceptions of law. He comments that the law has a pervasive role in Western society which is reflected in ‘the extent to which social control is exerted through law rather than other social forces’. In Asian cultures there is a greater emphasis on rules of custom and obligation in regulating civil interactions. In fact the Chinese tradition is to shy away from litigation, which can bring shame upon a family.[98] Needham and Ronan comment that ‘to invoke one’s rights was looked at askance ... The great art was to give way on certain points and so accumulate an invisible fund of merit whereby one can later obtain advantages in other directions.’[99] Thus one could argue that the table of skills predominantly follows the adversarial model of litigation, and that co-attendant with this, the Western concept that the skills of litigation are integral in being a competent lawyer. However, in a jurisdiction where mediation is the primary form of resolution, such as in Chinese and Japanese cultures or in countries where there still remains the split profession of solicitor and barrister, this litigious emphasis may not be as warranted.

This weighting toward litigation is apparent in the ‘Priestley 11’ — the subjects that the Law Council recommended must be undertaken in a law degree to be eligible for admission to practice.They are:

contract law
torts
criminal law and procedure
Federal and state constitutional law
administrative law
equity
civil procedure
evidence
property
company law
professional conduct.[100]

The specific inclusion of the areas of practice and procedure highlights this practice orientation. It could be argued that a general practitioner intending to establish a ‘mums and dads’ practice may not need knowledge of the rules of procedure and evidence in a legal system where it is the norm to use specialist advocates. It may be more important for such practitioners to have a working knowledge of family law and/or taxation law. Add to this that ‘Most disputes that ... could be brought to a court are in fact never placed on the agenda of any court ... Many of these disputes are ‘resolved’ by resignation, ‘lumping it’, ‘avoidance’, ‘exit’ or ‘self-help’ by one party.’[101] Two subjects out of a list of 11 fundamental fields of knowledge could be considered to be giving an over-emphasis on court-based litigation at the expense of other ‘important’ areas of legal knowledge. It is also telling that in surveying the Queensland legal profession, advocacy skills did not rate in the top ten in de Groot’s research.[102] This could reflect the fact that Queensland operates under a split profession.

The ALRC considers that ‘Popular culture and legal education has tended to focus on the role of the lawyer as dispute managers ... rather than as professionals who provide a broad range of non-adversarial services to clients’,[103] and suggests that less emphasis should be placed on the adversarial model of legal education.

TRANSFERABLE SKILLS

It becomes apparent, from the above menu of the range of skills that committees and authors have recommended, that the range of skills required of a law graduate depends on one’s conception of legal education.

Gibbs et al, however, argue that tertiary education should focus on common, transferable or generic skills that are of use in most applied fields.[104] Amongst these, those that are common to the desired skills to be incorporated into a law degree referred to previously are:

communication
group work
organisation
information gathering in terms of research
problem solving
interpersonal skills.

Likewise, the ALRC considers that:

To adapt to future developments, legal education may focus on the development of skills other than courtroom advocacy that can assist lawyers to respond to changes in the litigation system. Such a learning base may also take into account more frequent career changes and allow for the development of transferable skills.¹⁰⁵

What practitioner and academic alike agree on is that a university education provides a certain level of intellectual training. Twining is of the view that most basic legal skills involve generic human skills that are potentially transferable across geographical as well as occupational lines.[106] Hunter argues that ‘Law subjects should convey transferable intellectual skills which equip the law student to engage those skills in socially constructive endeavours’.[107] Lamb considers that:

new law schools (in Australia) have generally responded to the development of a legal profession which is no longer restricted to the activities of private law practice, but conducts its business in a wide variety of activities, in an environment of constant social, economic and technological change ... The practical application of law required the law graduate to be flexible, to have well-developed skills of research and analysis, communication and problem-solving that can be applied in any field of endeavour, and to be able to adapt to change.[108]

It may well be argued that the transferable skills cited by Gibbs could be developed in the course of a student’s legal education without overt resort to ‘skills training’.^ix The approach taken by QUT, as reported by Christensen and Kift,[109] is very consistent with this thinking.

The key debate focuses on the inclusion of skills that are peculiarly relevant to legal practice. (This point is considered again at the end of Part Five.)

IV: Models of integrating skills training in law school curricula

The MacCrate Report considers that skills training is ‘Unquestionably, the most significant development in legal education in the post-World War II era’.[110] This section reviews a range of ways to integrate skills training into an undergraduate curriculum in a law school. The purpose of doing this is to provide a means of considering the benefits and difficulties of each approach to enable a consideration of the best approach in a particular context.

In an early criticism of the lack of skills training in law schools in the US, Keyes suggested:

adding another year to law school
moving the Bar exam into the middle of the law degree
bifurcated law school where students do an internship mid-way through
postgraduate clinical legal education.[111]

The first three suggestions would require radical surgery to the current law degree structure in Australia.

Tomain and Solimine[112] suggest three ways of integrating skills and professional training:

the Integrated Curriculum Model (considered below)
the Lawyering Process Model. They consider that ‘learning to become a lawyer is a multilevel experience’ and that a reflective model of professional training should be developed by connecting theory with practice. (However, it is unclear how this is to be achieved.)
the Center Model (using legal clinics).[113]

• ACLEC also reviewed the following models:

integrated education and training
postgraduate professional education and training
apprenticeship (which does not occur within the university context).[114]

These models will be considered in turn.

THE INTEGRATION MODEL

Nash argues that he would ‘In an ideal world ... introduce practical content into each relevant law subject and also establish a mandatory clinical program’.[115] Martin states that QUT intended to adopt an approach ‘whereby there is to be a co-ordinated holistic development of skills throughout the course’.[116] Kift notes that QUT law graduates now receive a skills certificate indicating a level of skills training.[117] Christensen and Kift report more extensively on the progress of such integration on both horizontal and vertical levels.[118]

Martin argues that the QUT model is efficient for four reasons:

skills need to be learnt and practised over time
learning the theoretical principles of skills aids in student understanding and application
learning skills with academic content places that content in perspective
students need to develop responsibility for their own learning.[119]

Jackling suggests that integration is desirable since:

theoretical learning is enhanced and reinforced
theory is put in context
integration helps avoid the belief that law in text books and practice are the same thing
it facilitates the perception of problems being multi-faceted
it minimises the view that law is merely intellectual
the student is less likely to formulate the view that law is adversarial
non-academic skills are better learnt across time
development of communication skills will be enhanced.[120]

These comments are reflective of Gold’s view that ‘The goal of skills teaching and learning is to acquire a self-critical attitude to oneself, one’s practice and learning ... Learning skills is one way to promote personal and professional growth for life, for it teaches us how to learn adaptively.’[121]

In the same article, Gold also raises perhaps the most persuasive argument against this model, that:

teaching skills is not the same as teaching law ... teaching a person to perform particular skills requires an approach which is not typical of traditional law teaching^X ... These differences in learning and teaching methods are often new to traditional teachers who would prefer to stay within their traditional discipline and its methods.[122]

Hyams comments that ‘Many legal educators have not been taught to be educators at all’.Thus, he argues that it would not require re-training for law teachers to teach skills, but training per se.He acknowledges that ‘it is not possible to alter the curricula of large, established law schools overnight’. It is the case that many law teachers do not wish to, nor necess- arily have the skills to teach skills.[123] Christensen and Kift also comment on the need for a ‘significant cultural shift’ for faculty members to integrate skills.[124]

Tomain and Solimine consider that the wide range of skills required by the MacCrate Report cannot be taught in the three-year law degree program. They argue that ‘Legal educators are not equipped to teach interviewing, negotiations, trial practice, and the like in such a short time’.[125]

Blaustone however argues that such skills can be integrated into the general law school curriculum, and provides a means of incorporating mediation skills training in substantive law units.[126]

Simulations appear to provide an effective means of integrating skills training into substantive law units. In a simulation, students do what lawyers usually do in a form of role play. However, Feinman notes the limitation that it ‘is difficult to teach performative skills at a high level’.[127] He considers that it is impractical to try to develop significant drafting or negotiation skills, but rather meet the objective of making the students aware of the importance of skills. Dallas lists four reservations about simulations:

simulations use more class time than is justified in learning value
they are less effective for substantive learning
there are considerable administrative difficulties in large classes
they require substantial preparation.[128]

Cruikshank describes in detail the use of demonstrations (be it live or by video) in developing students’ skills, while he cautions that demonstrations should be short, realistic, criteria referenced, legally simple, gender neutral, and planned in detail.[129]

Hyams comments that:

smaller and newer established or establishing law schools have a unique opportunity to provide a new direction in law teaching. They can fix various teaching methodologies which give adequate weighting to skills teaching without having to deal with the inertia of established methodologies or large student numbers. In these law schools, skills teaching can occur in all subjects and can immediately be an important part of all curricula.[130]

The British experience suggests that ‘newer’ law schools do in fact place a greater emphasis on skills training.[131] Lamb notes that in Australia, the law faculties of the University of Wollongong (established in 1991), Bond University (1990), and the University of Western Sydney, Macarthur (1995) all have discrete practical legal skills programs.[132] The University of Western Sydney, Macarthur devotes 25 per cent of course contact hours and assessment to skills training. In this way, note Tzannes and King, skills teaching is integrated into every compulsory core subject.[133] They claim this integration ‘enhances the learning of the substantive material by introducing another mode of learning’.It is designed to ‘teach transferable skills which are equally useful to any occupation for which a law graduate may be employed’.[134]

Le Brun and Johnstone note that the ‘Griffith University’s curriculum is designed to introduce and refine skills in a structured sequence throughout the degree program’. Griffith University Law School adopted a new approach to the teaching of skills in 1992, with the introduction of the ‘Offices’ teacher-less, co-operative learning groups.[135] Kift and Airo-Farulla explain the design of this program, one of the aims of the program is to develop skills that are not traditionally taught in law school and provide situated learning of substantive law.[136] For instance, in conjunction with the unit ‘Associations and Trusts’, students in ‘Offices’ conduct client interviews, negotiate, and produce letters of advice. This process might answer the concern of McLaughlin, that UK law schools fail to teach students anything about the day-to-day practice management.[137] Barnhizer makes the same observation of US law schools.[138]

Newcastle University in 1993 divided its curriculum into two streams. One stream incorporated practical training and clinical experience to such an extent that the degree meets the requirements of a Practical Legal Training course, leading to admission for practice in New South Wales.[139] ACLEC notes that the University of Northumbria offers such an ‘exempting degree’ in the UK combining both academic and vocational stages.[140] Brayne, in reviewing a legal practice course, argues for the establishment of more Exempting Degrees.[141] The ALRC also notes the incorporation of practical legal training into the law degree at the University of Technology, Sydney, and comments on this being indicative of a significant change in legal education in the past five years. The Commission is ‘conscious of the moves towards unification of these two stages of legal education’.[142]

DEDICATED SKILLS COURSES

Grimes, Klaff and Smith comment that compulsory skills courses in research, drafting, advocacy and communication are commonly used in first-year programs in the UK. Over 80 per cent of universities in the UK indicated that skills were expressly incorporated within a dedicated unit or within a unit that combined skills with a substantive subject area.[143]

Martin notes that ‘ethics and professional responsibility’ and ‘legal research and writing’ are dedicated skills-based courses in the QUT law program.[144] Dedicated courses in ‘legal research and writing’ are not uncommon in compulsory law school curricula in Australia. Less commonly there are electives in advocacy,[145] or mediation,[146] while courses in law firm management are unlikely to be found in undergraduate curricula.[147]

Stark considers that an integrated approach is the better way to learn to read statutes rather than having a dedicated course.[148]

Snyder comments on the successful use of simulations in the course Pre-trial Practice.[149] However, considers that a course that ‘focuses exclusively on skills and tactics is pedagogically unsound’.[150] He successfully uses simulations for trial law, but also includes opportunities for students to think critically about the adversary system.

Examples of intensive skills courses in the United States of America include the College of William and Mary in the Marshall-Wythe School of Law. It has a compulsory program in legal skills, which operates throughout the first two years of law school, where the entire program is organised around a simulated student office.[151] One of the identified limitations of the program, however, is that other forms of legal practice can not be incorporated. Albany Law School has an ‘Introduction to Lawyering’ course where students practise interviewing, counselling, negotiating, drafting, case planning and oral advocacy. Maurer and Mischler comment, however, that its purpose is to convey part of the lawyering process, not to become proficient in these skills.[152] The University of Maryland offers a compulsory course in legal theory and practice, ‘designed to provide all ... law students with an integrated learning experience which links together theory, doctrine and the provision of legal assistance to poor and marginalised people’.[153] These may be examples of Tomain and Solimine’s concept of the lawyering process model.[154] In some law schools students are required to undertake specific skills-based courses which are serviced by other faculties. For instance, Bond University requires all its students, including law students, to take courses in communication skills, information technology, management, and either contempor- ary issues in law and society or cultural and ethical issues as part of their degrees.

LEGAL CLINICS

In Nash’s utopian world, he suggested that there would also be legal clinics, where students are exposed to real problems with real people.[155] The educational benefits of this process, particularly for students intending to practise law, are clear. Legal clinics fit well with the experiential learning model first suggested by Kolb in 1984. The benefits of this model in designing the teaching of skills were well expounded by Kift.[156] Grimes considers that the fundamental premise upon which clinical legal education is based is that it ‘opens eyes through experiential methods to the meaning and application of the law.’[157]

It has been argued by Wade that legal clinics were part of the second ‘wave’ of skills training (the first being the development of the ‘traditional’ skills of critiquing and manipulating legal rules).[158] Some legal clinics have been attached to substantive units such as commercial law,[159] tax,[160] civil procedure,[161] discrimination,[162] and environmental law.[163] Lundy notes that in the US it is expected every law school should offer clinical teaching.[164] However, law teachers in the UK continue to be wary of the method, and Grimes, Klaff and Smith’s research found that only eight out of 79 law schools surveyed in the UK offered legal clinics.[165]

Tomain and Solimine report that approximately two-thirds of American law schools run clinics, but that one of the continuing dilemmas is that clinicians are treated as second-class academics.[166]

The other concern about legal clinics is resources.[167] In those Australian law schools in Australia that offer it, the cost and lack of placement positions limit the program to only a small proportion of students. Grimes notes that clinical legal education is labour-intensive and the extent of supervision is considerable.[168] This is a major criticism levelled at the MacCrate Report’s recommendations: that despite urging more clinical programs, it ignores the resource implications of skills training.[169] The ALRC, in contrast, notes that dwindling budgets may prevent the expansion of clinical legal education programs in Australia.[170]

However, Rice argues that clinical legal education offers more than skills training. He argues that it introduces students to questions of social justice and the dynamics of the legal system.[171] One of the objectives of Monash University’s clinical program is to provide a social perspective.[172] Zariski contends that ‘the reflective insights brought forth by clinical experience are integrated in an emancipatory social theory while at the same time theoretical insights (in sociology for instance) may be applied in the techniques of practice’.[173] Hunter, on the other hand, argues that ‘clinical skills subjects, whether they be live-client or simulated, tend to place far too much emphasis on performance and far too little emphasis on intellectual inquiry of a broad conceptual kind’.[174]

Boswell made an interesting criticism of clinical legal education in arguing that, as clinical legal education becomes more mainstream, it has begun to emulate ‘traditional’ scholarship in becoming more theoretical.[175] Similarly, Maher considers that ‘clinical legal education has failed to transform legal education [as] clinical legal education now tries to structure itself in the image of the traditional legal education it was to replace’.[176] Boswell argues that this limits the benefits of such programs as a bridge between theory and practice.[177]

Givelber, Baker, McDevitt and Miliano extensively discuss the benefits or internships or summer clerkships, which are now common in Australia.[178] It is noted, however, that the ABA accreditation rules prohibit giving students credit for paid work and limit students to 20 hours of paid work per week. This then limits internships and clerkships as opportunities to provide real work experience for students in law school.

POSTGRADUATE PRACTICAL LEGAL TRAINING

Wade describes this push as part of the third wave of skills training.[179] Much has been written on the development of Practical Legal Training courses. Nash notes that Australia has followed the UK model of requiring post admission practical training in the forms of an apprenticeship or a training course.[180] Courses operate in Queensland, New South Wales, Victoria, Tasmania, South Australia, ACT and New Zealand.[181] The perceived benefits of this stem from the Ormrod Report, which viewed legal education as a continuum starting with an academic stage in law school and culminating in a practical stage before admission.[182] However, ACLEC focused on an integrative approach to legal education.[183] As part of this, ACLEC recommended that law graduates undertake a Common Professional Legal Studies course before deciding to become a solicitor or barrister.^xi In this course of approximately 15 weeks, students should learn legal research skills, communication skills, negotiation skills and fact management. Professional values were to be taught as a discrete course and also operate as a pervasive theme throughout the course.[184]

Intending solicitors are then required to undertake the Legal Practice course. This taught by over 50 institutions that teach the skills of legal writing and drafting, research, advocacy, interviewing and negotiation.[185] Other subjects include conveyancing, wills probate and administration, business law and practice, and litigation and advocacy.[186] In the Nottingham University Legal Practice course, the skills are taught separately at first and then integrated with compulsory units.[187] ACLEC recommended that an ‘integrated approach to learning, in which skills are taught in a substantive context, [as this] can be made intellectually rigorous, encouraging students to engage in critical reflection on the lawyer’s function’.[188]

Prior to attaining full admission, students are required to undertake the Professional Skills course whilst working as a trainee solicitor.^xii Over 12 days, the course includes subjects in personal work management, financial and business skills, advocacy and communication skills, and ethics and client responsibilities.[189] This is similar to the Practice Management course required by the Queensland Law Society.[190] The Law Society of England and Wales has developed a set of skills standards, being the skills that trainee solicitors should have acquired by the time of admission.¹⁹¹ The Queensland Law Society introduced a similar scheme to ensure that articled clerks obtain full training prior to admission.[192]

The perceived benefits of practical legal training courses are that they can offer a uniformity of training with adequate assessment facilities to ensure that the skills were in fact learnt.[193] It has been argued that a law degree teaches you to think like a lawyer, and a practical legal training course teaches you to act like one.

Nash comments that in the US there is not a perceived need for postgraduate practical training.¹⁹⁴ This, in part, explains the emphasis in American law schools on skills training. As Rice states ‘In the United States there is a clear expectation that law schools will provide practical skills training for use as professional attorneys’.^{195 xiii} Unlike the US, we have no Bar examination administered by the legal profession as a prerequisite for admission to practice. Tsamenyi and Clark observe that the Australian legal profession has been slow to limit entry to the profession and ensure quality standards in legal education.¹⁹⁶ However, the Australasian Profession Legal Education Council has launched non-enforceable ‘standards for the Vocational Preparation of Australian Legal Practitioners’ as guidelines for practical legal training.[197]

APPRENTICESHIP

Unlike the US, England requires law graduates to undertake some form of apprenticeship before admission: either a short training contract for solicitors, or pupillage for intending barrister.[198] Most Australian states (Northern Territory, Queensland, Tasmania, Victoria and Western Australia) require some form of apprenticeship before obtaining the right to an open practising certificate.^{199 xiv} In some states, such as South Australia, this can operate as an alternative to a practical legal training course.[200] Practical legal training courses now exist in all jurisdictions other than the Northern Territory.[201] As Gasteen notes,[202] there has been disquiet about the unevenness in training received by trainees.[203] Some jurisdictions, such as Victoria, Queensland and Tasmania, offer a combination of a period of a practical legal training and an apprenticeship. More recently, New South Wales moved to a combination approach in recognition that it is unrealistic to expect newly admitted solicitors, without practical experience, to be adequately prepared for practice.[204]

IS THERE ANOTHER MODEL?

Stier suggests that ‘lawyering has been divided into two sets of functions: case analysis, research and writing and advocacy on the one hand; and interviewing, counselling, negotiation, and mediation on the other’.[205] Rose makes the distinction between ‘traditional analytical instruction’ and ‘additional skills used by lawyers in representation of clients’ with a similar categorisation — except that advocacy is placed in the latter. Clearly, traditional analytical skills are important, but not skills considered too resource intensive to ‘teach’.[206]

It could be argued that the practical requirements for admission recommended by the Law Council could be broken into three groups. Bloom et al. devised a taxonomy of objectives which categorised learning into three domains: the cognitive (thinking), affective (feeling), and psychomotor (doing).[207] In considering the list recommended by the Law Council, one group of skills could be classed as being in the cognitive domain. The second group of skills could be classed as crossing boundaries between the cognitive and the psychomotor domains, and the third as a cross between cognitive and the affective domains — as delineated below:

domain:
legal analysis.
Domains:
legal research
trust accounts
legal writing.
Domain:
ethics
interviewing
negotiation
work management.

The first group of skills which fall strictly within the cognitive domain could be classed as ‘thinking like a lawyer’. These are skills that are generally expected to be developed through the course of a student learning the law. In this regard, the teacher may act as a model and guide, but it is expected that students will gain the abilities to analyse and solve problems through the process of studying the law. The second and third group of skills are generally thought of as ‘skills training’. These are best learnt through methods (discussed in more depth in Part Five) that involve experiential learning. This teaching method generally requires a smaller teacher:student ratio and is time-intensive, and subsequently can be costly in terms of resources.

It is submitted that more time-intensive practitioner skills could be taught without great financial cost and administrative difficulty within the structure of most law schools.

THE SPLIT MODEL

The Hon Mr Justice McGarvie, speaking at the Legal Education Conference organised by the Australian Law Council in 1991 on ‘The Function of a Degree: Core Subjects’, suggested there was a role for ‘basic lawyers’ and ‘system sustainers’.[208] The first were students intending to practise, the second were persons who undertook a course that enlightened their ability to question what law ought to be and how the system needs to evolve to accommodate change. In a similar vein, it is submitted that law schools could offer a degree which accommodates the development of generic skills and practitioner skills. The suggested means to do this is to offer a core curriculum in the first two years of the law degree which covers foundation units such as:

a contextual introduction to law
contract
torts
equity
criminal law
constitutional law and public law.

In these early years of law school, the opportunity should be taken to train students in legal research, legal reasoning, problem solving, group work, organisation and interpersonal skills considered to be generic, transferable skills. For the last two years of the law degree program students could be offered three alternatives. The first would be to undertake electives without the need to undertake the balance of the fields of knowledge the Priestley 11 requires for practice. Students could be awarded a law degree, but not move on to legal practice. The second would be to enrol in units oriented to legal practice, in particular those recommended by the Priestley Committee. However, these units could be offered in two modes. Assuming a model of lecture and tutorial, students could be offered the option of enrolling in the lecture series or the option of enrolling in the full program. Each option would have a different credit point weighting. The lecture would provide the theoretical underpinnings and the tutorial would operate as a form of skills training relevant to that unit. For instance, in Real Property it would be conveyancing or in Procedure, it could be drafting plaints. This proposal offers students a third alternative, which is to enrol in units associated with legal practice, such as procedure, but not undertake the tutorial mode which would be offered in the form of skills training. This offers the opportunity to undertake resource-intensive teaching in line with the schools of thought discussed in Part Five.

Keyes suggested a similar approach where 20–30 per cent of each course taught after the first year would be clinical in nature. However, he notes the obstacles of requiring more time, and the concern that some academics might not feel able to teach the clinical component.[209]

It is important to acknowledge that law schools in different institutions have different orientations. For the sustenance of the legal system, lawyers should be trained differently so that alternate perspectives can be brought to bear upon a problem. If such a proposal were introduced, it would be important to accept that offering units which reflected the fields of knowledge recommended by the Priestley Committee be acceptable for admission to practise, without attendant ‘skills training’. It is then open to the employing market and the enrolling student to make the distinction between graduates from different institutions according to their own needs and priorities. Garth and Martin’s research suggests that employing law firms do this. Their findings suggest little emphasis is placed on practitioner skills but make the pertinent point that ‘expectations can change. If law school actually were to improve the teaching of legal skills, for example, it might be that the partners would expect more.’[210]

In terms of staffing the ‘split’ units, there arises an opportunity. If an academic is theoretically strong, that person might provide the lectures, whereas a practically oriented staff member may ‘teach’ the skills. If for instance there was a weighting of eight credit points for the theory, and four credit points for the skills, academics would have the appropriate weighting taken into account in their teaching allocations. Providing such flexibility may offer academics the possibility to become specialist skills teachers. For instance, an academic may be a specialist mediator. Those skills may be taught in the skills component of evidence, family law and procedure. In determining teaching load, the number of hours taught across those courses could be accumulated. Another suggestion made by Feinman,[211] when discussing the use of simulations, is to employ a teaching assistant for the active component. However, due heed should be given to the US experience of clinical teachers not being considered equal to other academics.[212]

One of the obvious benefits of this option is that if universities wish to compete in the international market, with the increasing trend towards internationalisation, the training of generic skills would clearly be useful in jurisdictions with differing rules. It is the author’s view that it is important to attach skills to a substantive content unit, since, analogous with Paul Ramsden’s statement that ‘learning is learning of something’,[213] skills are the application of knowledge. Tomain and Solimine[214] state the a ‘skill ... applies substantive law’, and consider that theory should come before practice to encourage reflective learning. Nathanson states that ‘to learn a skill, students not only have to understand and apply theories and models, they also have to learn how to treat them critically or flexibly’.[215]

Students who wished to undertake the additional skills component would receive greater credit-point weighting and consequently undertake fewer units to complete their program. This would be a viable option for students who have made an early choice to specialise. Conversely, students could still pursue a wider range of units by not undertaking the skills component.

This combination offers students the opportunity to undertake a program that meets their graduate needs. Not all law schools would wish to, or should, follow this path. This proposal is one that would offer diversity, not take it away. Haddon comments that he suspects that the practising Bar in the US would support the SSV in the MacCrate Report to encourage a standards-centred legal education which would result in discouraging intellectual diversity.[216] This is not the intent of the above suggestion. However, it does satisfy the needs of most students, those who clearly wish to practise, those who are sure they do not, and the others who undertook law as they simply did not know what else to do. And it does so in a fashion that answers the dilemma of improving quality in an era of reducing resources.

V: How are skills ‘taught’?

How skills are integrated into a law curriculum and, in fact, whether they should be at all, has to be shown to depend on the conception of legal education one holds. However, if it is accepted that skills should be incorporated, even those of a generic nature, how can this best be achieved? Dallas comments ‘if learning is thought to be potentially interesting and creative, we will value a wide range of teaching methods and, by using them, tap the energies of our students and ourselves’.[217]

This section of the paper will give a brief overview of some key schools of thought in learning and offer suggestions as to how this can inform the integration of skills into the undergraduate curriculum of a law school.

COGNITIVE PSYCHOLOGY

The position of the cognitive psychologists is that if one can determine how people learn, then the teaching environment can be altered to encourage learning. For instance, an understanding of the way the brain remembers, can lead to means of developing skills to improve memory. Le Brun and Johnstone comment that ‘cognitive researchers became increasingly interested in learning how humans understand, reason, and comprehend. They were also keen to learn about the place and use of semantic networks, memory representations, and schemata in reference to complex learning activities’.[218]

This perspective recognises that learning is within the domain of the learner:

Cognitive psychology ... has been concerned with processes occurring inside the ‘black box’ of the individual learner. Its orientation is, however, not individualistic; it is towards clarifying general ways of thinking and towards describing the general mechanisms that characterise learning; irrespective of content or differences in the way learners relate to content.[219]

Active learning is to be encouraged and if a skill is practised the cognitive path will be set so that it can be replayed at a later date. Consistent with this thinking, it would be valuable to provide opportunities for students to both observe and undertake skill-based activities. By observing the expert, a student can learn the process to be undertaken. By practising the task, the student can reinforce that understanding.

EXPERIENTIAL LEARNING

Kift in her extensive article on lawyering skills considers the experiential model of learning to be a most appropriate method of skills teaching.²²⁰ This model, attributed to Kolb,[221] provides a cycle of learning.

It has also been used to define preferred learning styles, which are described well by Johnstone.[222] For the purposes of this paper it is worth considering this cycle to conceive of a means to best ‘teach’ skills. Gibbs argues that it is ‘not enough just to do, and neither is it enough just to think. Nor is it enough simply to do and think. Learning from experience must involve links between the doing and the thinking.’[223]

This model seeks to provide the learner with a concrete experience upon which to reflect. This leads to the formation of abstract concepts and generalisations which the learner can then test by active experimentation. Nathanson describes this as the ‘now familiar skills-teaching cycle: theory, demonstration, practice, feedback.’[224]

This process can be clearly seen in the design suggested by Hyams:

a one-hour lecture/tutorial
a one-hour seminar involving a role-play or problem-based learning experience
a two-hour clinical requirement, upon which students can reflect[225]

except that this process starts at the abstract conceptualisation and moves through the cycle.

There are two significant advantages of this model in the area of skills training: it focuses on the learner’s feelings; and it requires the student to be engaged in the activity, not simply observe it.[226] Costonis suggests that an integrated learning experience is in essence the experiential learning model.[227]

ADULT LEARNING

A basis of adult learning is the premise that a person is an adult learner as defined. Knowles[228] acknowledges that a person might not be an adult learner before reaching a certain level of maturity which might not be until after leaving school or college, marrying or entering full time employment. Bloch suggests the four major requirements of adult learning are:

being self-directed
drawing on accumulated knowledge and past experience
relating tasks directly to preparation for future social and professional roles
using new knowledge immediately.[229]

The essence of the adult-learning thinking is that adults are self-directed learners motivated by a variety of personal reasons.[230] Its premise is that adult learners have an established concept of self, and therefore some confidence in the learning styles that they adopt. Consequently, adult learners prefer problem-centred training that links their experiences to the current learning. It is on this basis that Reekie suggests that legal clinics are apprpriate as they encourage an andrological approach.[231]

With the assumption of adult learners’ distinct preference to self-directed learning, its theory concentrates on teaching techniques that respect and reward this mature approach.[232] For instance, adult learners bring much to the learning context and hence can benefit greatly from role plays and simulations as they have experience on which to base the activity. MacFarlane comments that such methods are ‘characteristic of skills education’.[233]

STUDENT APPROACHES TO LEARNING FRAMEWORK

This school of thought is attributed to writers such as John Biggs, Paul Ramsden and Noel Entwistle.[234] References are commonly made to Biggs’ 3P model: Presage, Process and Product.

The linchpin to the student approach to learning framework is the influence of the approach or process adopted. It is the approach that determines the quality of the learning outcomes. The desired approach is the deep approach, which is characterised by a genuine interest and engagement with the subject being learnt. This motivation influences the adoption of certain study strategies such as reading widely and reading for understanding. A student adopting a surface approach to learning is motivated by external forces such as a desire to pass the subject with minimum effort. Consequently, such students fail to engage with the content and thus fail to understand the meaning behind the words. This leads to strategies such as rote learning which result in recall or reproduction of the facts but which exhibit little understanding of the underlying structure or process. A third category of approach that has been isolated is that of the student who adopts an achieving approach to learning. Such a student is motivated by external rewards in the form of high grades and external recognition. This desire to achieve leads to a strategy of efficient learning. Hegarty-Hazel and Prosser suggest that this is the approach at which study skills intervention programs are aimed.²³⁵ A student adopting an achieving approach will adapt to the assessment demands. If in-depth analysis is required, the student will perform. However, if the assessment requires higher order rote learning such as in time limited exams, this will result in cramming techniques being adopted.

The product of learning is measured in qualitative and quantitative terms. However, the emphasis, as indicated by Ramsden,[236] is falling upon the quality of learning outcomes, while the quantitative measure in the forms of grading used to assess students in tertiary education may fail to adequately uncover the quality of student learning.

The student approaches to learning framework stresses that teachers should encourage a deep approach to learning. As Marton and Saljo explain ‘We are not arguing that the deep/holistic approach is always the ‘best’: only that it is the best, indeed the only, way to understand learning materials’.[237] Biggs clarifies misconceptions about the student approaches framework, and emphasises the affective component of the model. It is the motivation of the student which is the predominant issue. If a student is genuinely interested in the subject matter, it is likely that the student will engage with the content in a meaningful way. This is as important to a plumber as to a philosopher. Higher order cognitive skills might not be required of the plumber, but it is important for many reasons such as job satisfaction and quality of service that the plumber enjoy plumbing and understand the intricacy of the skills associated with the task. It does not matter that such a person may be enlisting psychomotor skills rather than cognitive abilities. The issue is that he or she understand the skills required for the job. To ensure this, the teacher must endeavour to encourage a deep approach to learning.[238]

Ramsden makes it very clear that each discipline may have a different meaning to a deep approach (as exemplified above). It is important that each discipline determine what a deep approach means in order to gain that particular expertise. It is for this reason that Biggs argues that discipline teachers should engage in education research in their own fields of expertise.[239] However, Ramsden makes the point that has been reiterated by many others. Although, it is easy to encourage a surface approach to learning such as through excessive workloads, anxiety and lower order assessment methods, it is difficult to encourage deep approaches.[240] Ramsden and Entwistle clearly showed the effects that the philosophical orientation of the faculty or school has on the approach adopted by students.[241] Equally, however, Ramsden, Beswick and Bowden report on how a program designed to encourage deep approaches to learning in fact reinforced surface approaches.[242] Biggs reports on study programs that have successfully motivated students to engage with the subject.[243] However, he emphasises that the means to do this is to recognise that learning is context bound. As Ramsden highlights, learning is always learning of something.[244] The key to encouraging deep approaches to learning appears to lie in engaging the students’ interest, in motivating the students to learn. This is the challenge for the teacher. Biggs clearly explains that the student approaches framework is based on a constructivist viewpoint.[245] Kift comments that constructivism focuses on the learner and that it is concerned with how learners construe knowledge and how they will construct personal meaning from that knowledge.[246]

Slorach and Nathanson argue that ‘Deep approaches to learning and the problem-solving goal of the curriculum are connected ... learning legal practice ... involves higher-order concepts and skills ... Legal education must be designed, therefore, to encourage reflection and deep approaches to learning.’[247]

HOW DOES THIS UNDERSTANDING ABOUT LEARNING IMPACT ON SKILLS TEACHING?

This shows that even educationists do not agree on how learning occurs, and on one model of learning. This provides an important insight: being that students learn in a range of ways. Saljo in his seminal research found the following five conceptions of learning:

Learning as a qualitative increase in knowledge.
Learning as memorising.
Learning as acquiring facts, skills and methods that can be retained and used as necessary.
Learning as making sense or abstracting meaning.
Learning as interpreting and understanding reality in a different way.[248]

A common criticism of skills training is that it does not engage the learner in higher order learning (being a level three conception). However, in the process of growth a learner usually passes through each stage. This fits with Bloom’s taxonomy of objectives in the cognitive domain of:

knowledge
comprehension
application
analysis
synthesis
evaluation.[249]

Analysis, synthesis and evaluation cannot occur without knowledge, comprehension and application.

Herein lies the place for skills training. By ‘learning skills that can be retained to be used later’ or by ‘application’ of the knowledge gained, students gain the ability to appropriately critique and evaluate the legal system and legal knowledge.

So how do we best imbue our students with these critical skills? Considering the range of schools of thought on learning reviewed above a number of observations can be made:

As Ramsden highlights learning is learning of something. The basis of any skills training lies in providing the appropriate context. This would suggest that an integration approach, undertaking skills training within a substantive unit, would be the better approach.
Consistent with the field of cognitive psychology and the Kolb model of experiential learning, students can gain significantly through the process of observation. In this way, teachers should act as models of the skills to be learnt.
Consistent with the SAL framework and to encourage lifelong learning and a constructivist approach,[250] students’ interest should be engaged to encourage an intrinsic motivation to learn. Providing a variety of learning activities maintains interest and also allows students with different learning styles to learn in a way that best suits them.
The SAL framework highlights the systemic nature of learning. Students respond to being appropriately rewarded. Appropriate assessment and good feedback are integral in ensuring high quality learning occurs.
Adult learning literature promotes a learning environment that relates the new learning to previous knowledge. This incremental approach also ensures that students can be successful in each stage of learning.[251]
Adult learning literature also encourages teaching approaches that engage students in simulations and role plays, key means of providing practice in necessary skills.
The literature on learning in the main promotes a student-centred approach to learning. Hence, the student should be encouraged to take responsibility for his/her own learning. This can be achieved by making the students active rather than passive recipients in the classroom.

From these observations, it is suggested that the best means to undertake skills training is to follow the cycle below:

provision of knowledge/information
explanation of the importance of the skill

in that context
observation of the skill
undertaking the skill
feedback as to how well the skill was used
personal practice of the skill
personal reflection and feedback as to how well

the skill has been developed.

This is similar in some ways to the experiential model.^xv

HOW DO WE PUT THIS TOGETHER?

With National Admission firmly in place in Australia, it is clear that law graduates seeking full admission need to not only meet knowledge criteria, but also skill requirements.^xvi The system of legal education in Australia provides Australian law schools with an opportunity. Having the provision of postgraduate Practical Legal Training or apprenticeships, there is not the pressure to conform to a vocational model as there is in the US. It is submitted that there are three levels of skills integration that might be considered by law schools:

1. Providing the intellectual rigour of learning that develops students analytical and problem-solving skills. Additionally, this will develop their legal research, reading and writing skills. Other generic skills such as communication, interpersonal skills and group work could also be developed without resource implications. The MacCrate Report acknowledges that law school teaches these ‘fundamental skills’ of legal analysis, research and writing and substantive knowledge.[252] In this context, the imbuing of practice-related skills required for admission to practise will be left to the later Practical Legal Training or Apprenticeship stage.

2. Providing the first level of skills together with practice and exposure to practice-related skills. This can be done by way of the integration model, dedicated courses or the Split Model. This approach takes account of the reservations of teaching practical skills in a simulated manner.[253]

3. Providing all levels of skills training to the extent that graduating students will be prepared for legal practice. This could be achieved by using the integrated model together with legal clinics or the split model. This could follow the Newcastle University/Northumbria University approaches to provide a degree that exempts students from the need to undertake a Practical Legal Training course. Grimes suggests that ‘If the potential of universities and colleges is to be utilised, the common, overtly vocational, elements of legal education can be built on the expanding skills base of the degree program by extending the degree for those who wish to stay on to cover professional practice requirement’.[254]

Not surprisingly, these options match the conceptions of legal education discussed in Part Two (in order of the above): that law school offers a liberal education, or the mixed model, or that law school is to train lawyers.

If one’s conception of legal education is that it is a place to learn cognitive skills such as legal analysis, problem solving, and legal research and writing, then the training of the skills can occur in the course of any substantive law unit. It is accepted that units within a law program provide legal materials relevant to the course, hence the knowledge component. It is not uncommon for assessment to require written work such as essays, research assignments and problem-based exams. In doing these tasks the students are practising the skills of reading, writing and analysing. In assessing the students’ work the important stage of feedback is being provided by the teacher.

However, if skills training is to be best promoted, the cycle suggested requires two additional stages. The first is the observation of the skill. How do teachers model in the classroom the skills of reading, writing and analysing? Secondly, there should be practice of the skill. Another not uncommon assessment method is the redeemable assignment where students are entitled to resubmit their work consequent upon amendments undertaken in light of the assessor’s comments. This provides formative feedback before summative assessment.

For law schools, which consider that practice-related skills should be developed by their law graduates, the above cycle may be effective. However, it may require more student-to-teacher time. To fit with this cycle to teach, for instance, interviewing skills, it will be necessary for the teacher to first model these skills. Students would then practise those skills with teacher feedback before being assessed on the level of their development. This can be achieved under the integration model as suggested by Martin.[255] However, the suggested cycle would support the view that dedicated skills courses might not provide the appropriate context for skills to be effectively learnt. This is the argument raised against study skills intervention courses, as discussed under the SAL framework.

To provide an exempting degree, live legal clinics rather than simulations may be necessary to provide the full development of the practical skills required for a neophyte lawyer. For students intending to practise law, this would clearly have a great appeal. If this is done in conjunction with either the integrated model or the split model, a sound argument could be made out that graduating students have the skills necessary for admission. One benefit of the suggested split model is that law schools may be able to provide students with the equivalent of an exempting degree, without necessarily extending the law program.

Conclusion

This paper has sought to provide a resource to law schools and law teachers considering the important issue of the place of skills training in the undergraduate law curriculum. The MacCrate Report provided a framework for curriculum planning for skills integration by defining five key goals: what, how, to how many, by whom and in what time frame.[256]

To utilise the resources suggested in this article, it is important for the reader to ask:

What is my conception of legal education?
What skills do I think need to be incorporated into the curriculum?
Is there a particular learning theory that best suits my students and course?
What are the best means of incorporating the teaching of the desired skills in my unit (or the undergraduate law curriculum)?
In considering the best means, what resources do I have available in terms of student contact hours and potential outside placements?

This paper has sought to provide answers to a number of arguments against incorporating skills into the undergraduate curricula, such as:

the balance between providing a liberal education and a trade school
difficulties in identifying skills to be taught
designing curricula to incorporate substantive skills
resource dilemmas.[257]

Skills need not be expensive frills. In following the suggested cycle, the development of important lawyering skills can be introduced without significant resource implications. Skills that traditionally have been thought to be cost intensive, such as interviewing and litigation skills, can also be incorporated with appropriate support. Law graduates are entering a rapidly changing environment. Within five years, much of what law students have learnt has changed or been overruled. Students who have developed key generic skills will have the ability to adapt and function effectively past this use-by date.

ENDNOTES

i MacFarlane (1992, p.295) convincingly argues for the ‘development of theory to support the design and implentation of new and forthcoming skills-based courses’.

ii Lilly (1995, p.1430) commenting on the United States system of legal education suggests there are three broad approaches to the study and teaching of law being the practical or operational approach, theoretical and doctrinal (closer to the mixed model).

iii Twining (1988) gives an extensive rebuttal to the arguments that integrating skills is illiberal, amoral or instrumental, narrow, reactionary, anti-intellectual or unneccessary.

iv A double degree is where a student enrols in a combined law program such as Arts/Law, Science/Law, Information Technology/Law and other courses on offer at the particular institution.

v Direct entry students are students who enter law school directly from completing High School in an Australian state where they attain a Tertiary Entrance Ranking.

vi Although the statistics reported in the Australasian Legal Education Handbook 1996 dispel this view to an extent (Centre for Legal Education 1997).

vii Particularly ABA approved law schools.

viii In contrast, in England and Wales only six subjects are prescribed in the academic stage —criminal law, constitutional and administrative law, contract, tort, trusts and equity and land law (The Law Society of England and Wales 1999).

ix With the possible exception of communication and interpersonal skills.

x It is assumed that traditional law teaching is a lecture/tutorial model.

xi On perusing the Rules for Admission of The Law Society of England and Wales (1999), it appears that this recommendation has not yet been implemented.

xii The quality of the training contracts is currently being investigated by The Law Society of England and Wales (1999).

xiii Peden (1972, p.161) in noting changes to legal education in Australia commented that ‘law schools, finally relieved of responsibility for producing lawyers fully equipped for immediate entry to practice, will be better able to comply with the Martin Committee recommendation that ‘universities should be more concerned with legal scholarship than legal practice.’

xiv The ALRC (1997) Issues Paper 21 does not include Tasmania as a jurisdiction requiring articles of clerkship.

xv Cruikshank (1994) in his article discussing the value of demonstrations suggests a sequence of describe the skills element; demonstration; discussion; review critieria; practice; criteria and feedback, practice and feedback.

xvi The ALRC (1997) notes that the move towards uniform national educational and admission standards in Australia. The Law Council of Australia has established a National Advisory Committee (NAC) to consider national admission standards.

[1]B.A. LL.M. (UQ) Grad. Cert. H.Ed. (UNSW) LL.M. (Bond) Senior Lecturer, Faculty of Law, University of Technology, Sydney: lyndal@law.uts.edu.au

[2]MacFarlane J, ‘Look Before you Leap: Knowledge and Learning in Legal Skills Education’ (1992) 19 Journal of Law and Society 293. MacFarlane convincingly argues for the ‘...development of theory to support the design and implementation of new and forthcoming skills-based courses’, p.29.

[3]http://www.alrc.gov.au/news/index.html

[4]Australian Law Reform Commission Report No 89, Managing Justice: A review of the federal civil justice system, Canberra, 2000.

[5]Pearce D. E., Campbell E. and Harding D., Australian Law Schools: A Discipline Assessment for the Commonwealth Tertiary Education Commission summary and 4 vols, AGPS, Canberra, 1987 [Pearce Report].

[6]Lilly G. C., ‘Law Schools without Lawyers? Winds of Change in Legal Education’ (1995) 81 Virginia Law Review 1421. Commenting on the US system of legal education, Lilly suggests (p.1430) there are three broad approaches to the study and teaching of law: the practical or operational approach, theoretical, and doctrinal (closer to the mixed model).

[7]Twining, W. ‘Pericles or the Plumber’ (1976) 83 Law Quarterly Review 396; Sampford, C. and Wood, D. ‘Legal Theory and Legal Education – The Next Step’ [1989] LegEdRev 10; (1989) 1 Legal Education Review 107; Balmford, P. ‘The Role of the Law School in Legal Education’ (1988) 62 Law Institute Journal 261; Bailey, D. ‘Legal Education in Victoria v. Legal Training’ (1988) 62 Law Institute Journal 258; Gold, N. ‘A Postscript — Themes, Trends and Prospects in Professoinal Legal Education and Training: A Global View’ (1985) 3 Journal of Professional Legal Education 171; Harman, K. M. ‘Professional Versus academic values: cultural ambivalence in University professional schools in Australia’ (1989) 18 Higher Education 491.

[8]Schlegel, J ‘Legal Education – More Theory, More Practice’ (1988) 13 Legal Service Bulletin 71, p.72.

[9]Kavanagh, P., ‘The Future of Legal Education’, (1989) Legal Service Bulletin 55, p.58.

[10]Balmford, P. ‘The Role of the Law School in Legal Education’, (1988) 62 Law Institute Journal 26, 1, p.262.

[11]Kahn-Freund ‘Reflection of Legal Education’, (1989) Legal Service Bulletin 55, p.134.

[12]Pearce Report 1987; Sampford and Wood 1989.

[13]Ziegert K. A., ‘What Law Professors Know and What they Think they Know about the Performance of Law Schools’, (1987) 11 Bulletin of Australian Society of Legal Philosophy 129, p.134.

[14]Bok, D. C. ‘A Flawed System of Law and Practice and Training’, (1983) 33 Journal of Legal Education 570, p.585.

[15]Tomain, J. P. and Solimine, M. E. ‘Skills Skepticism in the Post Clinic World’, (1990) 40 Journal of Legal Education 307, pp.316 and 317.

[16]Goldring, J. ‘Distance Teaching in Law: Possibilities for Commonwealth Co-operation’[1991] LegEdRev 4; , (1990) 2 Legal Education Review 83, p.89.

[17]Duncan, N. ‘Why Legal Skills: Whither Legal Education’ (1991) 25 Law Teacher 142.

[18]Saunders, N. ‘From Cramming to Skills: The Development of Solicitors’ Education and Training since Ormrod’, (1996) 30 The Law Teacher 168.

[19]Centre for Legal Education, Newsletter, 6, 1997.

[20]Armytage, L. and Vignaendra, S. Career Intentions of Australian Law Students, 1995, Sydney: Centre for Legal Education.

[21]Australian Law Reform Commission, ‘Issues Paper 21: Rethinking the Legal Education and Training’, 1997 (http://www.austlii.edu.au/au/other/alrc/publications/issues/21/ ).

[22]Peshel, G. ‘Interest in Non-traditional Jobs Grow’ 1993, 24 Syllabus 8.

[23]Ziegert, A. ‘Social Structure, Education Attainment and Admission to Law School’, (1992) 3 Legal Education Review 155.

[24]Costonis, J. ‘The MacCrate Report: Of Loaves and Fishes, and the Future of American Legal Education’, (1993) 43 Journal of Legal Education 157.

[25]Garth, B.G. and Martin, J. ‘Law Schools and the Construction of Competence’ (1993), 43 Journal of Legal Education 469.

[26]Gasteen, G. ‘National Competency Standards: Are They the Answer for Legal Education and Training’, (1995) 13 Journal of Professional Legal Education 1, p.6.

[27]Costonis 1993 n.24, p.194.

[28]MacCrate, R. ‘Preparing Lawyers to Participate Effectively in the Legal Profession’ (1994) 44 Journal of Legal Education 89.

[29]Pearce Report 1987 n.5, p.25.

[30]Taylor, L. ‘Factors that Affect Academic Success’, (1996) Bond University Law Library: unpublished Masters’ thesis.

[31]Centre for Legal Education 1997 n.19.

32The Hon. Mr. Justice Zeeman, W. P. M. ‘Curriculum: A Judicial Perspective’, (1995) 13 Journal of Professional Legal Education 215.

[33]Dean, R. ‘New Look Vocational Legal Education in England and Wales’ (1995) International Bar Association Committee 8 Newsletter 6.

[34]The Lord Chancellor’s Advisory Committee on Legal Education and Conduct (ACLEC), First Report on Legal Education and Training, Reading: MRM Associates Ltd, 1996.

[35]Ibid., p.27.

[36]Twining 1976 n.7, p.5.

[37]Jackling, N. ‘Academic and Practical Legal Education: Where Next?’, (1986) 4 Journal of Professional Legal Education 1, p.3.

[38]Australian Law Reform Commission 1997 n.21, p.1.23.

[39]Scragg, R.J. ‘Law, Skills and Transactions: The Opportunity for an Expanded Curriculum’, (1995) New Zealand Law Journal 234.

[40]ACLEC 1996 n.34.

[41]Rice, S. ‘Prospects for Clinical Legal Education in Australia’ (1991) 9 Journal of Professional Legal Education 155.

[42]Legal Education and Professional Development — An Educational Continuum, Report of the Task Force on Law Schools and the Profession: Narrowing the Gap [The MacCrate Report] 1992, ABA, Chicago, p.3.

[43]Myers, K. ‘Timing Questioned as Bar Group Calls for Accreditation Change’ (1993) 15 National Law Journal 4.

[44]Edwards, H. T. ‘The Growing Disjunction between Legal Education and the Legal Profession’, (1992) 91 Michigan Law Review 34.

[45]Stein, R. ‘The Future of Legal Education’ (1991) 75 Minnesota Law Review 945, p.953.

[46]Tsamenyi and Clark 1995, p.6.

[47]Stein 1991 n.45, p.9.

[48]Myers 1993 n.43.

[49]Nathanson, S. ‘Developing Problem-Solving Skills’, (1994) 44 Journal of Professional Legal Education 215.

[50]Pearce Report 1987 n.5.

[51]Steusser, L. ‘Skills for the Masses: Bringing Clincial Skills to More Students, p.Less Cost’, (1992) 10 Journal of Professional Legal Education 119.

[52]White, J. B. ‘Doctrine in a Vacuum: Reflections on What Law School Ought (Ought Not) To Be’, (1982) 32 Journal of Legal Education 155, p.161.

[53]Hunter, J. ‘Teaching Plumbing with Pericleean Ideal: Should it Be Done? Can It Be Done? Advocacy and Courtroom Scholarship’ (1996) 30 The Law Teacher 330 p.335.

[54]Chesterman, D. and Weisbrot, D., ‘Legal Scholarship in Australia’ (1987) 50 Modern Law Review 709.

[55]Australian Law Reform Commission 1997.

[56]Leech, G. ‘Jurist Calls for Wider Approach to Legal Studies’ (1993) The Australian 24 November 15.

[57]Weisbrot, D., ‘Foreword’ in Hunter, J. and Cronin, K., Evidence, Advocacy and Ethical Practice: A Criminal Trial Commentary, (1995) Butterworths, Australia.

[58]Sarat, A. ‘Lawyers and Clients: Putting Professional Service on the Agenda of Legal Education’ (1991) 41 Journal of Legal Education 43.

[59]Stier, S. ‘Reframing Legal Skills: Relational Lawyering’ (1992) 42 Journal of Legal Education 303.

[60]Tomain and Solimine 1990 n.15, p.315.

[61]Webb, J., ‘Inventing the Good: A Prospectus for Clinical Legal Education and the Teaching of Legal Ethics in England’, (1996) 30 The Law Teacher 270

[62]Sarat 1991, p.53.

[63]Goldring, J. ‘Learning Law and Learning about Law’, (1987) Education News 8 p.105.

[64]Jackling 1986 n.37.

[65]Gold, N. ‘Are Skills Really Frills?’ (1993) 11 Journal of Professional Legal Education , p.11.

[66]Hunter 1996 n.53.

[67]Ibid., p.333.

[68]Stein 1991, p.3.

[69]Le Brun, M. and Johnstone, R. The Quiet (r)evolution, Law Book Company Sydney, 1994 p.169.

[70]Legal Education in NSW: Report of the Committee of Inquiry [The Bowen Report] 1979, AGPS, NSW, para 3.2.4

[71]McInnes, C. and Marginson, S. Australian Law Schools After the 1987 Pearce Report AGPS, Canberra 1994, p.68.

[72]Priestley, L. J. Uniform Admission Requirements: Discussion Paper and Recommendations, Centre for Legal Education, Sydney 1994 proposals 7.2 and 7.3.

[73]Law Council of Australia, Blueprint for the Structure of the Legal profession. A National Market for Legal Services, Centre for Legal Education, Sydney, 1994, Principle 2.

[74]MacCrate Report 1992, p.8.

[75]Ibid.

[76]Crampton Report 1979.

[77]MacCrate Report 1992, p.91.

[78]Rice 1991, n.41.

[79]Garth and Martin 1993, n.25.

[80]Costonis 1993, n.24, p.188.

[81]Edwards, H.T., ‘The Growing Disjunction between Legal Education and the Legal Profession’ (1994) 91 Michigan Law Review 34.

[82]Loh, W. ‘The MacCrate Report: Heuristic or Prescriptive’ (1994) 69 Washington Law Review 505 p.512.

[83]Ibid.

[84]MacCrate Report 1992, p.91.

[85]Stein 1991. ABA approved law schools are particularly selective.

[86]Fitzgerald, M.F. ‘Professional Legal Training in the Commonwealth’ (1994) 12 Journal of Professional Legal Education 179.

[87]Nash, G. ‘Should Law Schools be Producing Lawyers?’ (1991) 9 Journal of Professional Legal Education 27.

[88]Martin, F. ‘Integration of Legal Skills into the Curriculum of the Undergraduate Law Degree: The Queensland University of Technology Perspective’, (1995) 13 Journal of Professional Legal Education 45.

[89]Christensen, S. and Kift, S. ‘Graduate Attributes and Legal Skills: Integration or Disintegration?’ (2000) 11 Legal Review 207.

[90]Le Brun and Johnstone 1994 n.69, p.171.

[91]Menkel-Meadow, C., ‘What’s Missing from the MacCrate Report: Of Skills, Legal Science and Being a Human Being’ (1994) 69 Washington Law Review 93.

[92]de Groot, J., ‘Acquiring Basic Legal Skills and Knowledge: What and Where?’, (1994) 12 Journal of Professional Legal Education 1.

[93]McCormack, M. H., ‘The Terrible Truth About Lawyers, Beech Tree Books, New York 1987, p.44.

[94]Garth and Martin 1993 n.25.

[95]Centre for Legal Education 1997 n.19.

[96]Baker, R. L. ‘Enhancing Professional Competence and Legal Excellence Through Teaching Law Practice Management’ (1990) 49 Journal of Legal Education 375.

[97]Goldring 1987 n.63.

[98]Sawer, G. ‘The Western Conception of Law’ in Tubingen, J.C.B. and Mohr, P.S. (eds) International Encyclopedia of Comparative Law: Oceania, vol 2, New York 1973, p.46.

[99]Needham, J. and Ronan, C. ‘Human Law and Law of Nature’ in The Shorter Science and Civilization in China, Cambridge University Press, Cambridge, 1970.

[100]Law Council 1994 n.73.

[101]Galanter, M. ‘Justice in Many Rooms: Courts, Private Ordering and Indigenous Law’ (1981) 19 Journal of Legal Pluralism and Unofficial Law 2.

[102]de Groot 1994 n.92.

[103]ALRC 1997 n.21, p.16.

[104]Gibbs, G., Rust, C., Jenkins, A. and Jacques, D Developing Student Transferable Skills, Oxford Centre for Staff Development, Oxford, 1994, p.9.

[105]ALRC 1997 n.21, p.17.

[106]Twining, W. ‘Taking Skills Seriously’, (1986) 4 Journal of Professional Education 1.

[107]Hunter 1996 n.53, p.336.

[108]Lamb, A. ‘Changes in Attitude, Changes in Latitude: The Changing Climate in Pre-Admission Practical Legal Training in New South Wales? (1995) 13 Journal of Professional Legal Education 173, 7 p.179.

[109]Christensen and Kift 2000 n.89.

[110]MacCrate 1994, p.6.

[111]Keyes, W. N. ‘Approaches and Stumbling Blocks to the Integration of Skills Training and the Traditional Methods of Teaching Law’ (1980) 29 Cleveland State Law Review 685.

[112]Tomain and Solimine 1990 n.15.

[113]Ibid.

[114]ACLEC 1996 n.34.

[115]Nash 1991 n.87, p.33.

[116]Martin 1995 n.88, p.52.

[117]Kift, S., ‘Lawyering Skills: Finding their Place in Legal Education’[1997] LegEdRev 2; , (1997) 8 Legal Education Review 43.

[118]Christensen and Kift 2000 n.89.

[119]Martin 1995 n.88, p.58.

[120]Jackling 1986 n.37, p.4.

[121]Gold 1993 n.65, p.11.

[122]Ibid., p.8.

[123]Hyams, R. ‘The Teaching of Skills: Rebuilding Not Just Tinkering around the Edges?, (1995) 13 Journal of Professional Legal Education 63 pp.75 and 77.

[124]Christensen and Kift 2000 n.89, p.219.

[125]Tomain and Solimine 1990 n.15, p.316.

[126]Blaustone, B. ‘Training the Modern Lawyer: Incorporating the Study of Mediation into Required Law Courses’, (1991) 21 SW University Law Review 1317.

[127]Feinman, J. ‘Simulations: An Introduction’ (1995) 45 Journal of Legal Education p.472.

[128]Dallas, L.L ‘Limited-Time Simulations in Business Law Classes? (1995) 45 Journal of Legal Education 487.

[129]Cruikshank, D. ‘Skills Demonstrations: Where ‘Show’ Works Better than ‘Tell’’ (1994) 45 Journal of Legal Education 487.

[130]Hyams 1995, p.78.

[131]Grimes, R., Klaff, J. and Smith, C., ‘Legal Skills and Clinical Legal Education: A Survey of Undergraduate Law School Practice’ (1996) 30 Law Teacher 44.

[132]Lamb 1995.

[133]Tzannes, M. and King, P., ‘Meeting Procedure: A Vehicle to Better Teach Corporations Law and Professional Legal Skill’ (1997) 15 Journal of Professional Legal Education pp. 123 and 127.

[134]Ibid.

[135]Le Brun and Johnstone 1994 n.69, p.170.

[136]Kift, S. and Airo-Farulla, G. ‘Throwing Students in the Deep End, or Teaching them How to Swim? Developing ‘Offices’ as Technique of Law Teaching’ [1995] LegEdRev 4; (1995) 6 Legal Education Review 53.

[137]McLaughlin, P. ‘Reflections on the Place of Practice Management in the Law School Curricula’, (1996) 2 Professional Lawyer 1.

[138]Barnhizer, D. ‘Of Rat Time and Terminators? (1995) 45 Journal of Legal Education 49.

[139]Lamb 1995 n.108.

[140]ACLEC 1996 n.34, p.29.

[141]Brayne, H. ‘LPC Skills Assessments: A Year’s Experience’ (1994) 28 The Law Teacher 227.

[142]ALRC 1997 n.21, para 5.4.

[143]Grimes et al. 1996 n.131.

[144]Martin 1995 n.88.

[145]McCrimmon, L. ‘Trial Advocacy Training in Law School: An Australian Perspective’[1994] LegEdRev 1; , (1994) 5 Legal Education Review 1.

[146]Astor, H. and Chinkin, C., ‘Teaching Dispute Resolution: A Reflection and Analysis’ [1991] LegEdRev 1; (1990) 2 Legal Education Review 1.

[147]Baker 1990 n.96.

[148]Stark, J. ‘Teaching Statutory Law’, (1994) 44 Journal of Legal Education 4.

[149]Snyder, L. B., ‘Teaching Students How to Practice Law: A Simulation Course in PreTrial Practice’, (1995) 45 Journal of Legal Education 513.

[150]Tanford, J. A., ‘What We Don’t Teach in Trial Advocacy: A Proposed Course in Trial Law’, (1991) 41 Journal of Legal Education 251.

[151]Moliterno, J. E., ‘The Legal Skills Program, p.the College of William and Mary: An Early Report’, (1990) 40 Journal of Legal Education 535.

[152]Maurer, N. M. and Mischler, L.F., ‘Introduction to Lawyering: Teaching FirstYear Students to Think Like Professionals’, (1994) 44 Journal of Legal Education 96.

[153]Bezdek, B. 1991, ‘Clinical Programs of the University of Maryland School of Law’, 9 Journal of Professional Legal Education 111, p.116.

154Tomain and Solimine 1990 n.15.

[155]Nash 1991 n.87.

[156]Kift 1997 n.117.

[157]Grimes et al. 1996 n.131, p.171.

[158]Wade, J., ‘Legal Skills Training: Some Thoughts on Terminology and Ongoing Challenges’, (1994) 5 Legal Education Review 173.

[159]Dolan, J. F. and McNair, R. A., ‘Teaching Commercial Law in Third Year: A Short Report on a Business Organisations and Commercial Law Clinic’, (1995) 45 Journal of Legal Education 283; Dauer, E. A. 1973, ‘Expanding Clinical Teaching Methods in Commercial Law Curriculum’, (1973) 25 Journal of Legal Education 76.

[160]Law School Tax Clinics Report 1978, ‘Growing Pains in Law School Tax Clinics: A Report of the Experience, p.Hofstra, Southern Methodist and Michigan’, (1978) 10, 8, CLEPR Newsletter 1.

[161]Walker, L. and Goldstein, B., ‘After the Law Clinic What?’, (1975) 27 Journal of Legal Education 614.

[162]Oppenheimer, D. B., ‘Baolt Hall’s Employment Discrimination Clinical Courses: A Model for Law School/Government Co-operation in Integrating Substance and Practice’, (1985) 7 Industrial Relations Law Journal 245.

[163]Pain, N. ‘Learning by Practice in the United States: Options for Australia — Clinical Education for Law Students’, (1990) 7 Environmental and Planning Law Journal 106.

[164]Lundy, L., ‘The Assessment of Clinical Legal Education: An Illustration’, (1995) 29 The Law Teacher 311.

[165]Grimes et al. 1996 n. 131.

[166]Tomain and Solimine 1990 n.15.

[167]Hyams, R., ‘The Teaching of Skills: Rebuilding Not Just Tinkering Around the Edges’, (1995) 13 Journal of Professional Legal Education 63.

[168]Grimes et al. 1996, n.131.

[169]Costonis 1993 n.24.

[170]ALRC 1997 n.21.

[171]Rice 1991.

[172]Pearce Report 1987.

[173]Zariski, A., ‘Prospects for Clinical Legal Education in Australia’, (1991) 9 Journal of Professional Legal Education 149, p.151.

[174]Hunter 1996 n.53, p.333.

[175]Boswell, R. A., ‘Keeping the Practice in Clinical Education and Scholarship’, (1992) 43 Hastings Law Journal 1187.

[176]Maher, S.T., ‘Clinical Legal Education in the Age of Unreason’, (1992) 40 Buffalo Law Review 809, p.811.

[177]Boswell 1992 n.175, p.1195.

[178]Givelber, D. J., Brook, J. M. and Miliano, R., ‘Learning Through Work: An Empirical Study of Legal Internship’, (1995) 45 Journal of Legal Education 1.

[179]Wade 1994 n.158.

[180]Nash 1991 n.87.

[181]Gasteen 1995 n.26; Zeeman 1995 n.32.

[182]Saunders 1996 n.18.

[183]ACLEC 1996 n.34.

[184]Ibid.

[185]Ibid.

[186]Law Society of England and Wales 1999.

[187]Slorach, S. and Knott, P., ‘The Development of Skills Teaching and Assessment on the English Legal Practice Course’ (1996) 14 Journal of Professional Legal Education 189.

[188]ACLEC 1996 n.34, p.87.

[189]Law Society of England and Wales 1999.

[190]Queensland Law Society 1999, personal communication.

[191]Law Society of England and Wales 1999.

[192]Queensland Law Society 1999.

[193]Peden, J.R., ‘Professional Legal Education and Skills Training for Australian Lawyers’ (1972) 46 Australian Law Journal 157

[194]Nash 1991 n.87, p.32.

[195]Rice 1991 n.41, p.156.

[196]Tsamenyi and Clark 1995.

[197]Centre for Legal Education 1997 n.19.

[198]ACLEC 1996 n.34.

[199]Gardiner, D. de Groot, J. and Taylor, L., ‘Skills and Knowledge Required for Admission to Practice’ Australian Law Council Legal Education Conference, Bond University, February 1991.

[200]Ibid.

[201]ALRC 1997 n.21.

[202]Gasteen n.26, 1995.

[203]ALRC 1997 n.21; and de Groot 1994 n.92.

[204]Lamb 1995 n.108. The Priestley Committee has recently made recommendations as to the core components of Practical Legal Training courses, reviewed by Olliffe and Monahan (2001).

[205]Stier 1992 n.59, p.305.

[206]Rose, J. ‘The MacCrate Report’s Restatement of Legal Education: The Need for Reflection and Horse Sense’, (1994), 44 Journal of Legal Education 548, p.554.

[207]Bloom, B. S., Engelhart, M. D., Furst, E. K., Hill, W. H and Krathwohl, D. R. McKay, Taxonomy of Educational Objectives: Cognitive Domain, New York: 1956.

[208]The Hon. Mr. Justice McGarvie, R. E., ‘The Function of a Degree: Core Subjects’, (1991) 9 Journal of Professional Legal Education 11.

[209]Keyes 1980 n.111.

[210]Garth and Martin 1993 n.25, p.499.

[211]Feinman 1995 n.27.

[212]Tomain amd Solimine 1990 n.15.

[213]Ramsden, P., Learning to Teach in Higher Education Routledge, London, 1992, p.49.

[214]Tomain and Solimine 1990 n.15, p.313.

[215]Nathanson 1994 n.49, p.220.

[216]Haddon, P.A., ‘Education for a Public Calling in the 21st Century’, (1994) 69 Washington Law Review 573.

[217]Dallas 1995 n.128, p.497.

[218]Le Brun and Johnstone 1994 n.69, p.56.

[219]Ramsden 1992 n.213, p.277.

[220]Kift 1997 n.117.

[221]Kolb, D.A., Experiential Learning: Experience, p.the Source of Learning and Development Prentice Hall, Englewood Cliffs, New Jersey, 1984.

[222]Le Brun and Johnstone 1994 n.69.

[223]Gibbs et al. 1994 n.104, p.9.

[224]Nathanson 1994 n.49, p.219.

[225]Hyams 1995 n.123, p.72.

[226]Le Brun and Johnstone 1994, n.69 p.30.

[227]Costonis 1993 n.24.

[228]Knowles, M., Adult Learner: A Neglected Species Gulf Publishing, Houston, 1990, p.57.

[229]Bloch cited in Knowles Ibid.

[230]Brookfield, S. D. 1986, Understanding and Facilitating Adult Learning: A Comprehensive Analysis of Principles and Effective Practices, San Francisco: Jossey-Bass Publishers.

[231]Reekie, R., ‘Creating Painters: The Art of Being a Clinical Law Teacher (Part 1)’, (1991) 9 Journal of Professional Legal Education 137.

[232]Galbraith, M. W. (ed), Facilitating Adult Learning: A Transactional Process, Malabar: FL Kreiger, 1991.

[233]MacFarlane 1992 n.2, p.309.

[234]Biggs, J., 1990 ‘Teaching for Better Learning’[1991] LegEdRev 8; , 2 Legal Education Review 133; Ramsden, 1992.

[235]Hegarty-Hazel, E. and Prosser, M., ‘Relationship between Students’ Conceptual Knowledge and Study Strategies – Part 1: Student Learning in Biology’ (1991) 3 International Journal of Science Education 303.

[236]Ramsden 1992 n.213.

[237]Marton, F. and Saljo, R., ‘Approaches to Learning’ in F. Marton (ed) The Experience of Learning Scottish Academic Press, Edinburgh, 1984, p.46.

[238]Biggs 1990 n.234.

[239]Ibid.

[240]Ramsden 1992 n.213.

[241]Ramsden, P. and Entwistle, N., ‘The Effects of Academic Departments on Students’ Approaches to Studying’ (1981) 51 Journal of British Educational Psychology 368.

[242]Ramsden, P. Beswick, D.G. and Bowden, J.A. ‘Effects of Learning Skills Intervention in First Year University Students’ Learning’ (1988) 5 Human Learning 151.

[243]Biggs 1990 n.234.

[244]Ramsden 1992 n.213, p.40.

[245]Biggs, J., ‘From Theories to Practice: A Cognitive Systems Approach’ (1993) 12 Higher Education Research and Development 73.

[246]Kift 1997, p.60.

[247]Slorach, S. and Nathanson, S., ‘Design and Build: The Legal Practice Course, p.Nottingham Law School’ (1996) 30 The Law Teacher 187, p.197.

[248]Saljo, R., ‘Learning from reading’ in F. Marton (ed) The Experience of Learning Scottish Academic Press, Edinburgh, 1984.

[249]Bloom et al. 1956 n.207.

[250]Candy, P., Self Direction for Lifelong Learning Jossey Bass Publishers, San Francisco, 1991.

[251]Ramsden 1992 n.213, p.140.

[252]Costonis 1993 n.24.

[253]Feinman 1995 n.127; Dallas 1995 n.128.

[254]Grimes et al. 1996 n.131, p.288.

[255]Martin 1995 n.88.

[256]Costonis 1993 n.24.

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Taylor, Lyndal --- "Skills Skills - Kind Inclusion And Learning In Law School" [2001] UTSLawRw 8; (2001) 3 University of Technology Sydney Law Review 85

Skills

Skills—Kind Inclusion And Learning In Law School

I: Legal education in Australia

II: Conceptions of legal education

III: A review of the skills that have been recommended for inclusion in an undergraduate law school curriculum

IV: Models of integrating skills training in law school curricula

V: How are skills ‘taught’?

Conclusion

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All Databases

Cases & Legislation

Journals & Scholarship

Law Reform

Treaties

Libraries

Communities

LawCite

Australia

CTH

ACT

NSW

NT

QLD

SA

TAS

VIC

WA

New Zealand

Specific Year

Any

Any

Taylor, Lyndal --- "Skills Skills - Kind Inclusion And Learning In Law School" [2001] UTSLawRw 8; (2001) 3 University of Technology Sydney Law Review 85

Skills Skills—Kind Inclusion And Learning In Law School

I: Legal education in Australia

II: Conceptions of legal education

III: A review of the skills that have been recommended for inclusion in an undergraduate law school curriculum

IV: Models of integrating skills training in law school curricula

V: How are skills ‘taught’?

Conclusion

Print

Download

Cited By

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Skills

Skills—Kind Inclusion And Learning In Law School